AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ________________, 1999
REGISTRATION NO. 333-____________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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FIRST M & F CORPORATION
(Exact name of registrant as specified in its charter)
Mississippi 64-0636653
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
221 E. Washington
Kosciusko, MS 39090-3745
(601) 289-5121
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------------------------------
FIRST M & F CORPORATION
STOCK OPTION PLAN
(Full title of the Plan)
HUGH S. POTTS, JR.
Chairman and Chief Executive Officer
FIRST M & F CORPORATION
221 E. Washington
Kosciusko, MS 39090-3745
(601) 289-5121
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Lloyd V. Crawford, Esq. Craig N. Landrum, Esq.
6060 Poplar Avenue, Suite 276 Watkins Ludlam Winter & Stennis, P.A.
Memphis, TN 38119 Post Office Box 427
Jackson, MS 39205-0427
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of
each class of Proposed Maximum Proposed Maximum Amount of
securities to Amount to be Offering Price Aggregate Registration
be registered Registered(1) Per Share(2) Offering Price(2) Fee(2)
- ----------------- ------------- ---------------- ------------------ ------------
Common Stock
($5.00 Par Value) 200,000 $31.50 $6,300,000 $1,751.40
- --------------------------------------------------------------------------------
(1) This registration statement covers, in addition to the number of shares of
Common Stock stated above, an additional indeterminate number of shares which by
reason of certain events specified in the Plan may become
subject to the Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h). Based on the average of the
high and low prices, as reported by NASDAQ, as of April 14, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
PART 11
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Annual Report of the Company on Form 10-K for its fiscal year ended
December 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year referred to in (a) above.
(c) The descriptions of the common stock of the Company contained in
registration statements filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company and the Plan pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
the Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into this Registration Statement and
to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable. No expert or counsel has or will receive a contingent fee
or a substantial interest in the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles provide for indemnification to the fullest extent
allowed by law. The Articles of the Company provide in Article Eleven certain
provisions regarding the extent to which the Company will provide
indemnification of and advancement of expenses to its Directors, officers,
employees and agents as well as persons serving at the request of the Company as
a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust employee benefit plan or other enterprise (collectively
referred to as "Eligible Persons").
The Company's Bylaws currently contain a provision requiring the Company to
indemnify any Director, officer, employee or agent who is made a party or
threatened to be made a party to any threatened, pending or completed claim,
action, suit or proceeding, other than an action by or in the right of the
Company, by reason of the fact that such person is or was a Director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a Director, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
reasonably incurred expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, but only if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, in criminal actions, he had no reasonable cause to believe his
conduct was unlawful.
<PAGE>
Unless limited by its Articles of Incorporation the Mississippi BCA
mandates that First M&F indemnify any Director who is successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party, against
reasonable expenses incurred by him in connection with the proceeding (the
"Mandatory Provision"). The Mississippi BCA permits the Company to indemnify a
Director who is made a party to a proceeding against liability (including
reasonable expenses) incurred in connection with such proceeding provided (1)
the Director's conduct was in good faith, (2) in the case of conduct in his
official capacity, the Director reasonably believed his conduct was in the best
interests of the Company , (3) in the case of conduct not in his official
capacity, the Director reasonably believed his conduct was not opposed to the
best interests of the Company, (4) in the case of any criminal proceeding, the
Director had no reasonable cause to believe that his conduct was unlawful, (5)
in the case of claims by or in the right of the Company, the Director is not
adjudged liable to the Company, and (6) in the case of third-party claims, the
Director is not adjudged liable on the basis that he derived an improper
personal benefit (the "Permissive Provision"). Statutory indemnification is
permitted under the Permissive Provision, however, only if indemnification is
authorized in a specific case after a determination is made by the Board of
Directors (by majority vote of a quorum consisting of directors not at the time
parties to the proceeding), by a majority of a special committee of
disinterested directors (if such quorum of directors is unobtainable), by
special legal counsel or by the shareholders (a "Disinterested Party"), that the
director has met the applicable standard of conduct. The Mississippi BCA also
provides that unless the Company's Articles of Incorporation provide otherwise,
a court may order indemnification of a director even if it finds he has not met
the applicable standard of conduct, or in the case of third-party claims,
involving action where the director acted within or without of his official
capacity, the director is adjudged liable on the basis that he derived an
improper personal benefit, the director was adjudged liable to the Company in a
proceeding by or in the right of the Company, if the court determines that the
director is reasonably entitled to indemnification in view of all the relevant
circumstances; provide, however, that if the director was adjudged liable to the
Company, his indemnification is limited to reasonable expenses. The Mississippi
BCA permits the Company to pay for or reimburse the reasonable expenses incurred
by a director in advance of final disposition of the proceeding, provided the
director affirms that he reasonably believes he has met the applicable standard
of conduct, the director agrees to repay the advance if it is ultimately
determined that he did not meet the standard of conduct, and a determination is
made by a Disinterested Party that the facts then known to the person(s) making
the determination would not preclude indemnification. The Mississippi BCA also
permits the Company to indemnify officers, employees and agents of the Company
to the same extent permitted for directors. Finally, the Mississippi BCA allows
indemnification beyond the scope of the Amended and Restated Mandatory and
Permissive Provisions.
Article Eleven of the Company's Articles of Incorporation does not limit
the applicability of the indemnification provisions contained in the Mississippi
BCA and, as permitted by the Mississippi BCA, requires the Company to indemnify
Eligible Persons beyond the scope of such provisions. The Company must indemnify
an Eligible Person, despite the fact that such person has not met the standard
of conduct set forth in the Permissive Provision or would be disqualified for
indemnification under the Permissive Provision because such person was either
found liable to the Company in a suit brought by or in the right of the Company
or was found liable in a third-party action on the basis that he received an
improper personal benefit, if a determination is made by a Disinterested Party,
or a court, that the act or omissions of the person seeking indemnification did
not constitute gross negligence or willful misconduct. Article Eleven also
provides for mandatory advancement of reasonable expenses to a person seeking
indemnification, without an affirmation by such person that he believes he has
met the applicable standard of conduct, as long as he agrees to repay the
advance if it is ultimately determined that he has not met the standard of
conduct and a Disinterested Party determines that the facts then known to such
Disinterest Party would not preclude indemnification.
Article Eleven further provides that no amendment or repeal of its
provisions maybe applied retroactively with respect to any event that occurred
prior to such amendment or appeal. The effect of such provision is that the
protection of Article Eleven may not be taken away or diminished by an amendment
in the event of a change in control of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or other qualified persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is thereby unenforceable.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable. No restricted securities are to be reoffered or resold
pursuant to this Registration Statement.
ITEM 8. EXHIBITS.
4.1 First M & F Corporation Stock Option Plan.
4.2 Articles of Incorporation and Amendments thereto of First M & F
Corporation*
4.3 Bylaws and Amendments thereto of First M & F Corporation*
5 Opinion of Watkins Ludlam Winter & Stennis, P.A.
23.1 Consent of Shearer Taylor & Co., P.A., independent public accountants.
23.2 Consent of Watkins Ludlam Winter & Stennis, P.A. is contained in their
opinion filed as Exhibit 5 to this Registration Statement.
24 Power of Attorney of First M & F Corporation (included on signature
page).
(*) These documents were filed as Exhibits 3(a), and 3(b) respectively, on Form
S-1 (File No. 33-08751) filed with the Commission on September 15, 1986, and are
hereby specifically incorporated by reference herein.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purposes 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and each filing of an employee benefit plan's annual
report pursuant to Section 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.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefor, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 Act and will be governed by the final
adjudication of such issue.
<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 Kosciusko, State of Mississippi, on April 19, 1999.
FIRST M & F CORPORATION
BY: /s/ Hugh S. Potts, Jr.
------------------------------------------
Hugh S. Potts, Jr.
Chairman & CEO
<PAGE>
Each of the directors of the registrant and each other person whose
signature appears below, by his execution hereof, authorizes Hugh S. Potts, Jr.
to act as his attorney in fact to sign, in his behalf individually and in each
capacity stated below, and file all amendments and post-effective amendments to,
the Registration Statement, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission and such other
applicable governmental/regulatory agencies, hereby ratifying and confirming all
that Hugh S. Potts, Jr. or his substitute or substitutes, may do or cause to be
done by virtue hereof, and the Registrant hereby confers like authority to sign
and file on its behalf.
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 dates indicated.
SIGNATURE TITLE DATE
/s/ Hugh S. Potts, Jr.
- -------------------------- Chairman & CEO, Director April 19, 1999
Hugh S. Potts, Jr.
/s/ Scott M. Wiggers
- -------------------------- President and Bond Officer, April 19, 1999
Scott M. Wiggers Director
/s/ R. Dale McBride
- -------------------------- President, Merchants & April 19, 1999
R. Dale McBride Farmers Bank-Durant Branch;
Director
/s/ Jon A. Crocker
- -------------------------- Chairman, Merchants & April 19, 1999
Jon A. Crocker Farmers Bank; Director
/s/ Fred A. Bell
- -------------------------- Director April 19, 1999
Fred A. Bell
/s/ Charles T. England
- -------------------------- Director April 19, 1999
Charles T. England
/s/ Toxey Hall, III
- -------------------------- Director April 19, 1999
Toxey Hall, III
/s/ Barbara K. Hammond
- -------------------------- Director April 19, 1999
Barbara K. Hammond
/s/ J. Marlin Ivey
- -------------------------- Director April 19, 1999
J. Marlin Ivey
/s/ Joe Ivey
- -------------------------- Director April 19, 1999
Joe Ivey
/s/ Susan Potts McCaffery
- -------------------------- Director April 19, 1999
Susan Potts McCaffery
/s/ Otho E. Pettit, Jr.
- -------------------------- Director April 19, 1999
Otho E. Pettit, Jr
/s/ Charles W. Ritter, Jr.
- -------------------------- Director April 19, 1999
Charles W. Ritter, Jr
/s/ W. C. Shoemaker
- -------------------------- Director April 19, 1999
W. C. Shoemaker
/s/ Edward G. Woodard
- -------------------------- Director April 19, 1999
Edward G. Woodard
FIRST M&F CORPORATION
STOCK OPTION PLAN
ARTICLE I - PURPOSE OF PLAN
1.1 PURPOSE OF PLAN. The purposes of this Plan are to encourage the stock
ownership of First M&F Corporation by directors, officers, and other key
employees of the Company and its Bank subsidiary, to provide an
incentive for such individuals to improve profitability, and to assist
the Company and subsidiary in attracting and retaining key employees and
directors through the grant of Options.
ARTICLE II - DEFINITIONS
2.1 AWARD means Options granted hereunder.
2.2 BANK means Merchants & Farmers Bank, a financial institution organized
under the laws of the State of Mississippi.
2.3 BOARD means the Board of Directors of the Company.
2.4 CODE means the Internal Revenue Code of 1986, as amended. Reference in
this Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to such section and any regulations
promulgated thereunder.
2.5 COMPANY means First M&F Corporation, a Mississippi business corporation
registered as a bank holding company under the Bank Holding Company Act
of 1956, or any successors as described in Article XI.
2.6 DATE OF DISABILITY means the date on which a Participant is classified
as Disabled.
2.7 DEATH means a Participant's death while holding Options granted under
this Plan.
2.8 DIRECTOR means a member of the Board who is not also employed by the
Company or the Bank as an employee.
2.9 DISABILITY or DISABLED means the permanent inability of a Participant to
perform the duties and responsibilities for which he was employed by the
Company or the Bank due to reasons of health or mental incapacity.
<PAGE>
2.10 ELIGIBLE EMPLOYEE means any person employed by the Company or the Bank
on a full-time, salaried basis who satisfies all of the requirements of
Article VI.
2.11 FAIR MARKET VALUE means the fair market value of the Stock, as
determined by the Board; provided, however, that (i) if the Stock is
admitted to quotation on the National Association of Securities Dealers
Quotation system on the date that the Option is granted, Fair Market
Value shall not be less than the average of the highest bid and lowest
asked prices of the Stock on such system on such date, or (ii) if the
Stock is admitted to trading on a national securities exchange on the
date the Option is granted, Fair Market Value shall not be less than the
last sale price reported for the Stock on such exchange on such date
or, in the absence of such a reported sale price, on the last date
preceding such date on which a sale was reported.
2.12 INCENTIVE STOCK OPTION means an Option that is an incentive stock option
within the meaning of Section 422 of the Code and that is granted under
Article VII.
2.13 NONQUALIFIED STOCK OPTION means an Option that is not an Incentive Stock
Option and that is granted under Article VII.
2.14 OPTION means either a Nonqualified Stock Option or an Incentive Stock
Option granted under Article VII.
2.15 PARTICIPANT means a Director or Eligible Employee who has been granted
an Award under this Plan.
2.16 PLAN means this First M & F Corporation Stock Option Plan.
2.17 RETIREMENT means normal retirement by an employee from the Company under
a retirement plan maintained by the Company, or, in the case of a
Director, termination from the Board due to attaining mandatory
retirement age.
2.18 RETIREMENT DATE is the Participant's date of Retirement.
2.19 STOCK means the common stock of the Company.
2.20 STOCK OPTION AGREEMENT means an agreement with respect to Options as
described in Article VIII.
2.21 TERMINATION means (i) in the case of an Eligible Employee, the
resignation or discharge from employment with the Company, except in the
event of Death, Disability, or Retirement, and (ii) in the case of a
Director, the resignation or removal from, or the expiration of the term
of service on, the Board.
<PAGE>
2.22 VESTED OPTION means, at any date, an Option that a Participant is then
entitled to exercise pursuant to the terms of a Stock Option Agreement.
ARTICLE III - EFFECTIVE DATE AND DURATION
3.1 EFFECTIVE DATE. Except as provided to the contrary herein, this Plan
shall be effective as of April 1, 1999.
3.2 PERIOD FOR GRANTS OF AWARDS. Awards may be made as provided herein for
a period of ten (10) years after the initial effective date of the Plan.
3.3 SHAREHOLDER APPROVAL. The Plan shall be submitted to the shareholders
of the Company for approval within 12 months after the date the Plan is
adopted by the Board.
3.4 TERMINATION. This plan shall be terminated as provided in Article XII,
but shall continue in effect until all matters relating to the payment
of Awards and the administration of the Plan have been settled.
ARTICLE IV - ADMINISTRATION
4.1 ADMINISTRATION. This Plan shall be administered by the Board. All
questions of interpretation and application of this Plan, or of the
terms and conditions pursuant to which Awards are granted, exercised, or
forfeited under the provisions hereof, shall be subject to the
determination of the Board. Such determination shall be final and
binding upon all parties affected thereby.
ARTICLE V - GRANT OF AWARDS AND LIMITATIONS ON NUMBER OF SHARES OF STOCK AWARDED
5.1 GRANT OF AWARDS; NUMBER OF SHARES. The Board may, from time to time,
grant Awards of Options to one or more Directors and/or Eligible
Employees; provided that:
(a) Subject to any adjustment pursuant to Article X or Article XI, the
aggregate number of shares of Stock subject to Awards under this
Plan may not exceed 200,000 shares;
(b) To the extent that an Award lapses or the rights of the Participant
to whom it was granted terminate, or to the extent that the Award
is canceled by mutual agreement of the Board and the Participant
(which cancellation opportunities may be offered by the Board to
Participants from time to time), any shares of Stock subject to
such Award shall again be available for the grant of the Award
hereunder;
<PAGE>
(c) Shares of Stock ceasing to be subject to an Award because of the
exercise of an option shall no longer be available for the grant of
an Award hereunder;
(d) Directors shall not be eligible to receive awards of Incentive
Stock Options hereunder; and
(e) Shares of Stock that are the subject of grants of Options under
this Plan shall be set aside out of authorized but unissued shares
of Stock not reserved for other purposes.
In determining the size of Awards, the Board may take into account a
Participant's responsibility level, performance potential, cash
compensation level, the Fair Market Value of the Stock at the time of
Awards, and such other considerations as it deems appropriate.
ARTICLE VI - ELIGIBILITY
6.1 ELIGIBLE INDIVIDUALS. Full-time, salaried officers and other key
employees of the Company (including officers or employees who are
members of the Board) and Directors shall be eligible to receive Awards
under this Plan, provided they are residents of the State of
Mississippi. Subject to the provisions of this Plan, the Board shall
from time to time select from such eligible persons those to whom Awards
shall be granted and determine the size of the Awards. A Participant may
hold more than one Option at any one time. No Director, officer, or
employee of the Company shall have any right to be granted an Award
under this Plan, as all Awards granted hereunder are granted in the sole
and absolute discretion of the Board, as provided herein.
ARTICLE VII - OPTIONS
7.1 GRANTS OF OPTIONS. Awards shall be granted to Participants in the form
of Options to purchase Stock.
7.2 TYPE OF OPTION. The Board may choose to grant a Participant who is a
Director Nonqualified Stock Options and it may choose to grant a
Participant who is an Eligible Employee either Incentive Stock Options
or Nonqualified Stock Options or both, subject to the limitations
contained herein.
<PAGE>
7.3 INCENTIVE STOCK OPTION DOLLAR LIMITATIONS. If the Board grants Incentive
Stock Options, the aggregate Fair Market Value (determined at the time
the Option is granted) of any such Options plus any incentive stock
options qualified under Section 422 of the Code and granted under any
other plans of the Company that shall be first exercisable by any one
Participant during any one calendar year shall not exceed $100,000, or
such other dollar limitation as may be provided in the Code.
ARTICLE VIII - TERMS AND CONDITIONS OF STOCK OPTION AGREEMENTS
8.1 STOCK OPTION AGREEMENTS. Awards shall be evidenced by Stock Option
Agreements in such form as the Board shall, from time to time, approve.
Such Stock Option Agreements, which need not be identical, shall comply
with and be subject to the following terms and conditions:
(a) Medium of Payment. Upon exercise of the Option, the Option price
shall be payable in United States dollars in cash or by certified
check, bank draft, money order payable to the order of the Company,
by surrender of Stock, or a combination thereof.
(b) Number of Shares. The Stock Option Agreement shall state the total
number of shares to which it pertains.
(c) Option Price. With respect to Incentive Stock Options, the Option
price shall be not less than the Fair Market Value of such shares
on the date of granting of the Option (or one hundred ten percent
(110%) of such amount if the Option is granted to an individual
owning stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company).
With respect to Nonqualified Stock Options, the Option price shall
not be less than the Fair Market Value of such shares on the date
of the granting of the Option.
(d) Term of Options. Each Nonqualified and Incentive Stock Option
granted under this Plan shall expire not more than ten (10) years
from the date the Option is granted, except that each Incentive
Stock Option granted under the plan to an individual owning stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company shall expire not more
than five (5) years from the date the Option is granted.
<PAGE>
(e) Date of Exercise. Except for such limitations as may be provided
by the Board in its discretion pursuant to this Article VIII, any
Vested Option may be exercised in whole at any time during its term
or in part from time to time during its term.
(f) Exercise of Option or Forfeiture. Except as otherwise provided in
any employment agreement or other written agreement with the
Participant, if a Participant ceases employment with the Company or
ceases to be a Director, as the case may be, prior to exercise of
the Participant's Options, such Options shall be exercised or
forfeited as follows:
(i) Termination. Upon the Termination of a Participant who is an
Eligible Employee, the Participant's Vested Options shall be
exercisable within three (3) months (or such shorter period
as the Code or the terms of the particular Options may
require) of the Participant's Termination. In default of
such timely exercise, all Options of the Participant shall be
forfeited.
(ii) Retirement. Upon the Retirement of a Participant who is an
Eligible Employee, the Participant's Options (which shall
become Vested Options as of the Participant's Retirement
Date) shall be exercisable within three (3) months (or such
shorter period as the Code or the terms of the particular
Options may require) of the Participant's Retirement Date. In
default of such timely exercise, all Options of the
Participant shall be forfeited.
(iv) Termination of Director Status. In the case of a Participant
who is a Director and who ceases to be a Director for a
reason other than Retirement or Death, the Participant's
Options shall be exercisable within three (3) months (or
such shorter period as the Code or the terms of the
particular Options may require) of the termination. In the
case of a Participant who is a Director and who ceases to be
a Director due to Retirement, the Participant's Options shall
be exercisable within thirty-six (36) months (or such shorter
period as the terms of the particular Options may require) of
the termination.
(iv) Disability. Upon the Disability of a Participant, the
Participant's Options (which shall become Vested Options as
of the Participant's Date of Disability) shall be exercisable
within three (3) months (or such shorter period as the Code
or the terms of the particular Options may require) of the
Participant's Date of Disability. In default of such timely
exercise, all Options of the Participant shall be forfeited.
<PAGE>
(v) Death. If the Participant dies while in the employment of the
Company, while serving as a Director, or within the period of
time after Retirement during which the Participant would have
been entitled to exercise his or her option rights, the
Participant's estate, personal representative, or beneficiary
(as applicable) shall have the right to exercise such Options
(which shall become Vested Options as of the date of the
Participant's Death) within one hundred eighty (180) days
from the date of the Participant's death (or such shorter
period as the Code or the terms of the particular Options may
require).
(g) Agreement as to Sale of Securities. If, at the time of the exercise
of any Option, in the opinion of counsel for the Company, it is
necessary or desirable, in order to comply with any applicable laws
or regulations relating to the sale of securities, that the
Participant exercising the Option shall agree to purchase the
shares that are subject to the Option for investment only and not
with respect to any present intention to resell the same and that
the Participant will dispose of such shares only in compliance
with such laws and regulations, the Participant will, upon the
request of the Company, execute and deliver to the Company an
agreement to such effect. The Participant shall agree to comply
with the right of first refusal and other provisions of his or her
Stock Option Agreement and to become a party to any shareholder's
agreement in effect among the Company and its stockholders.
(h) Minimum Number of Shares. The minimum number of shares with respect
to which an Option may be exercised at any one time shall be five
hundred (500) shares, unless the number is the total number at the
time available for exercise under the Award.
(i) Required Amendments. Each Award shall be subject to any provision
necessary to ensure compliance with federal and state securities
laws.
(j) Limitation of Participant Rights. A Participant shall not be deemed
to be the holder of, or to have the rights of a holder with respect
to, any shares of Stock subject to such Option unless and until the
Option shall have been exercised pursuant to the terms thereof, the
Company shall have issued and delivered the shares to the
Participant, and the Participant's name shall have been entered as
a stockholder of record on the books of the Company. Thereafter,
the Participant shall have full voting, dividend, and other
ownership rights with respect to such shares of Stock.
<PAGE>
ARTICLE IX - GRANTS IN SUBSTITUTION FOR OPTIONS GRANTED BY OTHER CORPORATIONS
9.1 SUBSTITUTE AWARDS. Awards may be granted under this Plan from time to
time in substitution for similar awards held by employees of the Company
or the Bank as the result of merger or consolidation of the employing
corporation with the Company or the Bank, or the acquisition by the
Company of fifty percent (50%) or more of the stock of the employing
corporation, or the acquisition by the Company of the assets of the
employing corporation, or the acquisition by the Company of fifty
percent (50%) or more of the stock of the employing corporation causing
it to become a subsidiary. Subject to any conditions that may be
required for the Plan to satisfy the requirements of Rule 16b-3 under
the Securities Exchange Act of 1934, as amended, the terms and
conditions of the substitute awards so granted may vary from the terms
and conditions set forth in this Plan to such extent as the Board at the
time of the grant may deem appropriate to conform, in whole or in part,
to the provisions of the options in substitution for which they are
granted.
ARTICLE X - CHANGES IN CAPITAL STRUCTURE
10.1 CAPITAL STRUCTURE CHANGES
(a) If the outstanding shares of the Company's Stock as a whole are
increased, decreased, changed into, or exchanged for a different
number or kind of shares or securities of the Company, whether
through merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split, combination of
shares, exchange of shares, change in corporate structure, or the
like, an appropriate and proportionate adjustment shall be made in
the number and kinds of shares subject to the plan and in the
number, kinds, and per share exercise price of shares subject to
unexercised Options or portions thereof granted prior to any such
change. Any such adjustment in an outstanding Option, however,
shall be made without a change in the total price applicable to
the unexercised portion of the Option but with a corresponding
adjustment in the price for each share of Stock covered by the
Option.
(b) Upon dissolution or liquidation of the Company, or upon a
reorganization, merger, or consolidation in which the Company is
not the surviving corporation, or upon the sale of substantially
all of the assets of the Company to another corporation, the Plan
and the Options issued thereunder shall terminate. In the event of
such termination, all outstanding Options shall become Vested
Options and be exercisable in full for at least thirty (30) days
prior to the termination date whether or not otherwise exercisable
during such period.
<PAGE>
(c) In the event of a change in the Stock which is limited to a change
in the designation thereof to "capital stock" or other similar
designation, or in par value at no par value, without increase or
decrease in the number of issued shares, the shares resulting from
any such change shall be deemed to be Stock within the meaning of
this Plan.
(d) Adjustments under this Section shall be made by the Board, whose
determination as to what adjustment shall be made, and the extent
thereof, shall be conclusive. The Board shall have the discretion
and power in any such event to determine and to make effective
provision for the acceleration of time during which the Option may
be exercised, notwithstanding the provisions of the Option setting
forth the date or dates on which all or any part of it may be
exercised. No fractional shares of Stock shall be issued under the
Plan on account of any adjustment specified above.
ARTICLE XI - COMPANY SUCCESSORS
11.1 IN GENERAL. If the Company shall be the surviving or resulting
corporation in any merger, sale of assets or sale of stock,
consolidation, or corporate reorganization (including a reorganization
in which the holders of Stock receive securities of another
corporation), any Award granted hereunder shall pertain to and apply to
the securities to which a holder of Stock would have been entitled. The
Board shall make such appropriate determinations and adjustments as it
deems necessary so as to substantially preserve the rights and benefits,
both as to the number of shares and otherwise, of Participants under
this Plan.
ARTICLE XII - AMENDMENT
12.1 AMENDMENTS AND TERMINATION. The Plan shall terminate on the tenth (10th)
anniversary of the initial effective date of the Plan, although such
termination shall not affect any outstanding Option which has not
otherwise expired pursuant to the terms of the Stock Option Agreement.
in addition, the Board may at any time and from time to time alter,
amend, suspend, or terminate this Plan in whole or in part, except
(i) without such stockholder approval as may be required by law and the
Company's charter, no such action may be taken which changes the minimum
Option price, increases the maximum term of Options, materially
increases the benefits accruing to Participants hereunder, materially
increases the number of securities that may be issued pursuant to this
Plan (except as provided in Article X), extends the period for granting
Awards hereunder, or materially modifies the requirements as to
eligibility for participation hereunder, and (ii) without the consent of
the Participant to whom any Award shall theretofore have been granted,
no such action may be taken that adversely affects the rights of such
Participant concerning such Award, except as such termination or
amendment of this Plan is required by statute, or rules and regulations
promulgated thereunder, or as otherwise permitted hereunder.
<PAGE>
ARTICLE XIII - MISCELLANEOUS PROVISIONS
13.1 NONTRANSFERABILITY. Except by the laws of descent and distribution, no
benefit provided hereunder shall be subject to alienation, assignment,
or transfer by a Participant (or by any person entitled to such benefit
pursuant to the terms of this Plan), nor shall it be subject to
attachment or other legal process of whatever nature, and any
attempted alienation, assignment, attachment, or transfer shall be void
and of no effect whatsoever and upon any such attempt, the benefit shall
terminate and be of no force or effect. During a Participant's lifetime,
Options granted to the Participant shall be exercisable only by the
Participant. Shares of stock shall be delivered only into the hands of
the Participant entitled to receive the same or into the hands of the
Participant's authorized legal representative.
13.2 NO EMPLOYMENT RIGHT. Neither this Plan nor any action taken hereunder
shall be construed as giving any right to any individual to be retained
as a director, officer, or employee of the Company.
13.3 TAX WITHHOLDING. The Company shall have the right to deduct from all
Awards paid by any federal, state, local, or employment taxes that it
deems are required law to be withheld with respect to such payments. In
the case of Awards paid in Stock, the Participant receiving such Stock
may be required to pay the Company an amount required to be withheld
with respect to such Stock. At the request of a Participant, such sums
as may be required for the payment of any estimated or accrued income
tax liability may be withheld and paid over to the governmental entity
entitled to receive same.
13.4 ACCELERATION. Except as otherwise provided hereunder, the Board may in
its discretion accelerate the time at which an Option granted hereunder
may be exercised.
13.5 FRACTIONAL SHARES. Any fractional shares concerning Awards shall be
eliminated at the time of payment or payout by rounding down for
fractions of less than one half (1/2) and rounding up for fractions
equal to or more than one half (1/2).
13.6 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to make
payment of Awards in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by any
government agencies as may be deemed necessary or appropriate by the
Board. If Stock awarded hereunder may in certain circumstances be exempt
from registration under the Securities Act of 1933, the Company may
restrict its transfer in such manner as it deems advisable to ensure
such exempt status. The Plan is intended to comply with Rule 16b-3
under the Securities Exchange Act of 1934, as amended. Any
provision inconsistent with such Rule shall be inoperative and shall not
affect the validity of the Plan. The Plan shall be subject to any
provision necessary to assure compliance with federal and state
securities laws.
<PAGE>
13.7 INDEMNIFICATION. Each person who is or at any time serves as a member of
the Board shall be indemnified and held harmless by the Company against
and from (i) any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such person in connection with or
resulting from any claim, action, suit, or proceeding to which such
person may be a party or in which such person may be involved by reason
of any action or failure to act under this Plan; and (ii) any and all
amounts paid by such person in satisfaction of judgment in any such
action, suit, or proceeding relating to the Plan. Each person covered
by this indemnification shall give the Company an opportunity, at its
own expenses, to handle and defend the same before such person
undertakes to handle and defend the same on such person's own behalf.
The foregoing right to indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled
under the charter or bylaws of the Company, as a matter of law, or
otherwise, or any power that the Company may have to indemnify such
person or hold such person harmless.
13.8 RELIANCE ON REPORTS. Each member of the Board shall be fully justified
in relying or acting in good faith upon any report made by the
independent public accountants of the Company, and upon any other
information furnished in connection with this Plan. In no event shall
any person who is or shall have been a member of the Board be liable for
any determination made or other action taken or any omission to act in
reliance upon any such report or information, or for any action taken,
including the furnishing of information, or failure to act, if in good
faith.
13.9 GOVERNING LAW. All matters relating to this Plan or to awards grated
hereunder shall be governed by the laws of the State of Mississippi,
without regard to the principles of conflict of laws thereof, except to
the extent preempted by the laws of the United States.
13.10 RELATIONSHIP TO OTHER BENEFITS. No payment under this Plan shall be
taken into account in determining any benefits under any pension,
retirement, profit sharing, or group insurance plan of the Company.
13.11 EXPENSES. The expenses of implementing and administering this Plan shall
be borne by the Company.
<PAGE>
13.12 TITLES AND HEADINGS. The titles and headings of the Articles and
sections in this Plan are for convenience of reference only, and in the
event of any conflict, the text of this Plan, rather than such titles or
headings, shall control.
13.13 USE OF PROCEEDS. Proceeds from the sale of Stock pursuant to Options
granted under the Plan shall constitute general funds of the Company.
13.14 NONEXCLUSIVITY OF PLAN. Neither the adoption of the Plan by the Board
nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of stock options
otherwise than under the Plan, and such arrangements may be applicable
either generally or only in specific cases.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officer and its seal to be affixed hereto,
effective, except as specified to the contrary herein, as of April 1,
1999.
FIRST M&F CORPORATION
By:_________________________________
As its:_____________________________
April 20, 1999
Board of Directors
First M&F Corporation
221 East Washington
Kosciusko, MS 39090
Gentlemen:
We have acted as counsel for First M & F Corporation, a Mississippi corporation
(the "Company") in connection with the filing of its Registration Statement on
Form S-8 (the "Registration Statement") for the registration of 200,000 shares
of Common Stock, par value $5.00 per share, of the Company under the Securities
Act of 1933. The Registration Statement is being filed in connection with the
Company's offering such shares pursuant to the Company's Stock Option Plan (the
"Plan").
We have examined the Articles of Incorporation and the amendments thereto,
Bylaws, Corporate Minutes and other corporate records and proceedings of the
Company relating to its organization and present corporate status and such other
corporate records and documents as we have deemed relevant for purposes of this
opinion.
Based on the foregoing, it is our opinion that the shares of Common Stock, par
value $5.00 per share, of the Company when issued and sold in accordance with
the terms and conditions of the Plan will be legally issued, fully paid and non
assessable shares of Common Stock of the Company.
This opinion is limited to the laws of the State of Mississippi and the federal
laws of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Watkins Ludlam Winter & Stennis, P.A.
WATKINS LUDLAM WINTER & STENNIS, P.A.
We have issued our report dated February 5, 1999, accompanying the consolidated
financial statements of First M & F Corporation incorporated by reference in the
Annual Report of First M & F Corporation on Form 10-K for the year ended
December 31, 1998. We hereby consent to the incorporation by reference of said
report in this Registration Statement on Form S-8.
/s/ Shearer, Taylor & Co.
Jackson, Mississippi
April 20, 1999
