<PAGE> 1
As filed with the Securities and Exchange Commission on April 30, 1999
File No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORUS BANKSHARES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MINNESOTA 41-0823592
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
3959 N. LINCOLN AVENUE 60613-2431
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(773) 832-3088
CORUS BANKSHARES, INC.
1999 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
ROBERT J. GLICKMAN
PRESIDENT
3959 N. LINCOLN AVENUE
CHICAGO, ILLINOIS 60613
(773) 832-3088
(AGENT FOR SERVICE)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.05 1,000,000 Shares $30.953125 $30,953,125 $8,605
per share
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee on
the basis of the average of the high and low prices for the shares of
Common Stock as reported on the NASDAQ National Market on April 28,
1999.
================================================================================
<PAGE> 2
Part II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Corus Bankshares,
Inc. ("Corus" or "Registrant") with the Securities and Exchange Commission (the
"SEC") are incorporated by reference herein and shall be deemed to be a part
hereof:
(a) Form 10-K for the year ended December 31, 1998 (File No.
0-6136); and
(b) The description of Corus Bankshares Inc.'s shares of Common
Stock contained in the registration statement on Form 8-A
filed with the SEC on April 13, 1972 (File No. 0-6136).
All documents subsequently filed by Corus Bankshares pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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 herein by
reference and shall be deemed a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock registered hereunder
is being passed upon for Corus Bankshares by the law firm of Mayer, Brown &
Platt, Chicago, Illinois. Mayer, Brown & Platt has represented and is currently
representing Corus Bankshares and certain of its affiliates.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
In accordance with the Minnesota Business Corporation Act (being
Chapter 302A of the Minnesota Statutes), Article IV of the Registrant's Bylaws
provide as follows:
ARTICLE IV: The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceedings, whether civil,
criminal, administrative or investigative by reason of the fact that
such person is or was a director, or officer of the corporation or is
or was serving as a director of a subsidiary corporation against
expenses (including attorneys' fees actually and reasonably incurred),
judgments, fines and amounts paid in settlement by such person in
connection with such action, suit or proceeding if said party has met
the elements specified for eligibility for indemnification as set forth
in subdivision 2 of Section 302A.521 of the Minnesota Business
Corporation Act. The termination of any action, suit or proceeding by
judgment or settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person did not meet each of the eligibility requirements as set forth
in subdivision 2 of Section 302A.521 of the Minnesota Business
Corporation Act.
In addition, this corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or on behalf of the
corporation
<PAGE> 3
to obtain a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was
serving as a director of a subsidiary corporation, against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or
suit if he or she has met each of the requirements set forth in
Subdivision 2 of Section 302A.521 of the Minnesota Business Corporation
Act.
Furthermore, this corporation shall also indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil or criminal, administrative or investigative, by reason of the
fact that such person is or was an officer of a subsidiary corporation
against expenses (including attorneys' fees actually and reasonably
incurred), judgments, fines and amounts paid in settlement by such
person in connection with such action, suit or proceeding if said party
has met the elements specified for eligibility for indemnification as
set forth in subdivision 2 of Section 302A.521 of the Minnesota
Business Corporation Act, and provided further that said person was not
negligent in the performance of his or her duties while acting as an
officer of a subsidiary corporation.
This corporation shall further indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceedings, whether civil,
criminal, administrative or investigative by reason of the fact that
such person is or was serving in an official capacity as a trustee or
as a fiduciary of any employee pension or benefit plan for the
corporation or any subsidiary against expenses (including attorneys'
fees actually and reasonably incurred), judgments, fines and amounts
paid in settlement by such person in connection with such action, suit
or proceeding if said party has met the elements specified for
eligibility for indemnification as set forth in subdivision 2 of
Section 302A.521 of the Minnesota Business Corporation Act.
In order to be eligible for indemnification, any officer or
director made a party to any threatened or pending action, suit or
proceeding shall notify the corporation in writing within thirty (30)
days that said party intends to seek indemnification and thereafter the
corporation shall have the right to arrange for the defense of said
party and the payment of costs associated therewith, and if the
corporation does undertake defense of any officer, director or other
party eligible for indemnification, then the corporation shall have the
right, with the consent of the party to be indemnified, to settle said
action, claim or suit, provided, however, that if said party refuses to
accept the settlement offer, then the corporation shall not be
obligated for any further indemnification or payment of any additional
claim, costs or judgments in excess of the settlement offer amount. No
indemnification shall be available to any officer or director who shall
fail to give the notice required by this paragraph if the corporation
was unaware of the action to which the notice would have related and
was prejudiced by failure to give the notice.
No indemnification shall be made with respect of any claim,
issue or matter as to which such person seeking indemnification shall
have been adjudged to be liable for misconduct in the performance of
his or her duty to the corporation or any subsidiary or employee
pension or benefit plan provided, however, that except as to an officer
of a subsidiary corporation the termination of any action, suit or
proceeding by judgment or settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption
that the person seeking indemnification did not meet each of the
eligibility requirements as set forth in subdivision 2 of Section
302A.521 of the Minnesota Business Corporation Act.
To the extent that a director, or officer, of the corporation
has been successful, on the merits or otherwise, in the defense of any
action, suit or proceeding referred to herein, or in defense of any
claim, issue or matter therein, then provided such person has met the
eligibility requirements set forth herein in subdivision 2 of Section
302A.521 of the Minnesota Business Corporation Act, and has complied
with the other terms and conditions hereof, then such person shall be
indemnified against expenses actually and reasonable incurred by such
person in connection therewith.
II-2
<PAGE> 4
Any indemnification made pursuant to these Bylaws shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer or
trustee or fiduciary is proper in the circumstances because he or she
is eligible for said indemnification pursuant to these Bylaws and to
Subdivision 2 of Section 302A.521 if the Minnesota Business Corporation
Act. Such determination shall be made (a) by the Board of Directors by
a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such quorum is
not obtainable, then by a majority of a committee of the Board
consisting solely of two or more Directors not at the time parties to
the action, suit or proceeding, duly designated to act in the manner by
a majority of the full Board including Directors who are parties or (c)
if a determination cannot be made pursuant to (a) or (b) as aforesaid,
then by special legal counsel selected either by a majority of the
Board of Directors or a committee selected pursuant to (b) or if the
requisite quorum of the full Board cannot be obtained and the committee
cannot be established, then by a majority of the full Board including
Directors who are parties to such action, suit or proceeding or (d) if
a determination cannot be made under (a), (b) or (c) then by the
shareholders excluding the votes of shares held by parties to such
action, suit or proceeding, provided however, that if an adverse
determination regarding indemnification is made pursuant to (a), (b),
(c) or (d) or if no determination is made under (a), (b), (c) or (d)
within sixty (60) days after the termination of an action, suit or
proceeding for which indemnification is sought, then said determination
regarding eligibility may be made by a court of competent jurisdiction.
Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding, as authorized by
the Board of Directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, or officer or trustee or
fiduciary, to repay such amount, unless it shall ultimately be
determined that he or she is entitled to be indemnified by the
corporation as authorized by these Bylaws.
The corporation shall also have the power from time to time to
purchase and maintain insurance on behalf of any person in that
person's Official Capacity, against any liability asserted against and
incurred by the person in or arising from that capacity whether or not
the corporation would have been required to indemnify the person
against the liability under the provisions of these Bylaws.
The corporation shall also have the power from time to time to
enter into Indemnification Agreements with each director or officer of
the corporation and with each director of a subsidiary corporation and
with each trustee or individual acting in a fiduciary capacity for an
employee benefit or pension plan sponsored by the corporation or a
subsidiary and with each director or officer of the corporation or
trustee or individual acting as a fiduciary as aforesaid as same are
added as directors or officers or trustees or fiduciary as aforesaid to
the corporation or of a subsidiary corporation, or with respect to any
employee benefit or pension plan sponsored by the corporation or a
subsidiary, provided however, that the failure to execute
Indemnification Agreements between any such director, or trustee,
fiduciary and/or officer as aforesaid and the corporation shall not
abrogate the indemnification authorized by these Bylaws.
The corporation shall have no obligation to indemnify any
employee (other than officers or directors of the corporation or of a
subsidiary as defined in these Bylaws) or agent who was or is a party
or is threatened to be made a party to any threatened pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person
is or was an agent or employee of the corporation or of a subsidiary
corporation against expenses (including attorneys' fees actually and
reasonably incurred), judgments, fines and amounts paid in settlement
by such person in connection with such action, suit or proceeding. Any
indemnification of such employees or agents shall be made only to the
extent and on such terms and conditions as the Board of Directors of
this corporation may determine by separate resolution.
II-3
<PAGE> 5
For purposes of this Section IV the term "subsidiary
corporation" shall mean a corporation of which 80% of the issued and
outstanding shares thereof are owned by this corporation and the term
"official capacity" shall have the same meaning as set forth in the
Minnesota Business Corporation Act.
The Minnesota Business Corporation Act provides for indemnification of
officers, directors and others as follows:
302A.521 INDEMNIFICATION. -- Subdivision 1. Definitions. (a) For
purposes of this section, the terms defined in this subdivision have
the meanings given them.
(b) "Corporation" includes a domestic or foreign
corporation that was the predecessor of the corporation referred to in
this section in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(c) "Official capacity" means (1) with respect to a
director, the position of director in a corporation, (2) with respect
to a person other than a director, the elective or appointive office or
position held by an officer, member of a committee of the board, or the
employment relationship undertaken by an employee of the corporation,
and (3) with respect to a director, officer, or employee of the
corporation who, while a director, officer, or employee of the
corporation, is or was serving at the request of the corporation or
whose duties in that position involve or involved service as a
director, officer, partner, trustee, employee or agent of another
organization or employee benefit plan, the position of that person as a
director, officer, partner, trustee, employee, or agent, as the case
may be, of the other organization or employee benefit plan.
(d) "Proceeding" means a threatened, pending or completed
civil, criminal, administrative, arbitration, or investigative
proceeding, including a proceeding by or in the right of the
corporation.
(e) "Special legal counsel" means counsel who has not
represented the corporation or a related organization, or a director,
officer, member of a committee of the board, or employee, whose
indemnification is in issue.
Subd. 2. Indemnification mandatory; standard. (a) Subject to
the provisions of subdivision 4, a corporation shall indemnify a person
made or threatened to be made a party to a proceeding by reason of the
former or present official capacity of the person against judgments,
penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection with the
proceeding, if, with respect to the acts or omissions of the person
complained of in the proceeding, the person:
(1) Has not been indemnified by another organization or
employee benefit plan for the same judgments, penalties, fines,
including, without limitation, excise taxes assessed against the person
with respect to an employee benefit plan, settlements, and reasonable
expenses, including attorneys' fees and disbursements, incurred by the
person in connection with the proceeding with respect to the same acts
or omissions;
(2) Acted in good faith;
(3) Received no improper personal benefit and section
302A.255, if applicable, has been satisfied;
II-4
<PAGE> 6
(4) In the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and
(5) In the case of acts or omissions occurring in the
official capacity described in subdivision 1, paragraph (c), clause (1)
or (2), reasonably believed that the conduct was in the best interests
of the corporation, or in the case of acts or omissions occurring in
the official capacity described in subdivision 1, paragraph (c), clause
(3), reasonably believed that the conduct was not opposed to the best
interests of the corporation. If the person's acts or omissions
complained of in the proceeding relate to conduct as a director,
officer, trustee, employee or agent of an employee benefit plan, the
conduct is not considered to be opposed to the best interests of the
corporation if the person reasonably believed that the conduct was in
the best interests of the participants or beneficiaries of the employee
benefit plan.
(b) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent does not, of itself, establish that the person did not meet
the criteria set forth in this subdivision.
Subd. 3. Advances. Subject to the provisions of a subdivision
4, if a person is made or threatened to be made a party to a
proceeding, the person is entitled, upon written request to the
corporation, to payment or reimbursement by the corporation of
reasonable expenses, including attorneys' fees and disbursements,
incurred by the person in advance of the final disposition of the
proceeding, (a) upon receipt by the corporation of a written
affirmation by the person of a good faith belief that the criteria for
indemnification set forth in subdivision 2 have been satisfied and a
written undertaking by the person to repay all amounts so paid or
reimbursed by the corporation, if it is ultimately determined that the
criteria for indemnification have not been satisfied, and (b) After a
determination that the facts then known to those making the
determination would not preclude indemnification under this section.
The written undertaking required by clause (a) is an unlimited general
obligation of the person making it, but need not be secured and shall
be accepted without reference to financial ability to make the
repayment.
Subd. 4. Prohibition or limit on indemnification or advances.
The articles or bylaws either may prohibit indemnification or advances
of expenses otherwise required by this section or may impose conditions
on indemnification or advances of expenses in addition to the
conditions contained in subdivisions 2 and 3 including, without
limitation, monetary limits on indemnification or advances of expenses,
if the prohibition or conditions apply equally to all persons or to all
persons within a given class. A prohibition or limit on indemnification
or advances may not apply to or affect the right of a person to
indemnification or advances of expenses with respect to any acts or
omissions of the person occurring prior to the effective date of a
provision in the articles or the date of adoption of a provision in the
bylaws establishing the prohibition or limit on indemnification or
advances.
Subd. 5. Reimbursement to witnesses. This section does not
require, or limit the ability of, a corporation to reimburse expenses,
including attorneys' fees and disbursements, incurred by a person in
connection with an appearance as a witness in a proceeding at a time
when the person has not been made or threatened to be made a party to a
proceeding.
Subd. 6. Determination of eligibility. (a) All
determinations whether indemnification of a person is required because
the criteria set forth in subdivision 2 have been satisfied and whether
a person is entitled to payment or reimbursement of expenses in advance
of the final disposition of a proceeding as provided in subdivision 3
shall be made:
(1) By the board by a majority of a quorum, if the
directors who are at the time parties to the proceeding are not counted
for determining either a majority or the presence of a quorum;
II-5
<PAGE> 7
(2) If a quorum under clause (1) cannot be obtained, by a
majority of a committee of the board, consisting solely of two or more
directors not at the time parties to the proceeding, duly designated to
act in the matter by a majority of the full board including directors
who are parties;
(3) If a determination is not made under clause (1) or
(2), by special legal counsel, selected either by a majority of the
board or a committee by vote pursuant to clause (1) or (2) or, if the
requisite quorum of the full board cannot be obtained and the committee
cannot be established, by a majority of the full board including
directors who are parties;
(4) If a determination is not made under causes (1) to
(3), by the shareholders, but the shares held by parties to the
proceeding must not be counted in determining the presence of a quorum
and are not considered to be present and entitled to vote on the
determination; or
(5) If an adverse determination is made under clauses (1)
to (4) or under paragraph (b), or if no determination is made under
clauses (1) to (4) or under paragraph (b) within 60 days after (i) the
later to occur of the termination of a proceeding or a written request
for indemnification to the corporation or (ii) " written request for an
advance of expenses, as the case may be, by a court in this state,
which may be the same court in which the proceeding involving the
person's liability took place, upon application of the person and any
notice the court requires. The person seeking indemnification or
payment or reimbursement of expenses pursuant to this clause has the
burden of establishing that the person is entitled to indemnification
or payment or reimbursement of expenses.
(b) With respect to a person who is not, and was not at
the time of the acts or omissions complained of in the proceedings, a
director, officer, or person possessing, directly or indirectly, the
power to direct or cause the direction of the management or policies of
the corporation, the determination whether indemnification of this
person is required because the criteria set forth in subdivision 2 have
been satisfied and whether this person is entitled to payment or
reimbursement of expenses in advance of the final disposition of a
proceeding as provided in subdivision 3 may be made by an annually
appointed committee of the board, having at least one member who is a
director. The committee shall report at least annually to the board
concerning its actions.
Subd. 7. Insurance. A corporation may purchase and maintain
insurance on behalf of a person in that person's official capacity
against any liability asserted against and incurred by the person in or
arising from that capacity, whether or not the corporation would have
been required to indemnify the person against the liability under the
provisions of this section.
Subd. 8. Disclosure. A corporation that indemnifies or
advances expenses to a person in accordance with this section in
connection with a proceeding by or on behalf of the corporation shall
report to the shareholders in writing the amount of the indemnification
or advance and to whom and on whose behalf it was paid not later than
the next meeting of shareholders.
Subd. 9. Indemnification of other persons. Nothing in this
section shall be construed to limit the power of the corporation to
indemnify persons other than a director, officer, employee or member of
a committee of the board of the corporation by contract or otherwise.
(Last amended by Ch. 10, L. '97, eff. 8-1-97.)
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-6
<PAGE> 8
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
A. Rule 415 Offering.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any 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 registration
statement is on Form S-3 or Form S-8, and 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 Exchange Act that are incorporated
by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
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. Filings Incorporating Subsequent Exchange Act Documents by Reference.
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 section 15(d) of the Exchange Act
(And, where applicable, each filing of an employee benefit plan's annual report
pursuant to 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. Indemnification of Directors and Officers.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions of the registrant's charter or by-laws
II-7
<PAGE> 9
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 of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-8
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of Corus Bankshares, hereby constitutes and appoints Robert J. Glickman
and Timothy H. Taylor, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, with full power to act alone, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and any and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or his substitute or
nominee, may lawfully do or cause to be done by virtue hereof.
II-9
<PAGE> 11
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 Chicago, State of Illinois, on April 28, 1999.
CORUS BANKSHARES, INC.
By /s/ Robert J. Glickman
--------------------------------------------------
Robert J. Glickman
President and Chief Executive Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Joseph C. Glickman Chairman of the Board of Directors April 28, 1999
- -------------------------------------------
Joseph C. Glickman
/s/ Robert J. Glickman President and Chief Executive Officer April 28, 1999
- ------------------------------------------- (principal executive officer) And Director
Robert J. Glickman
/s/ Timothy H. Taylor Executive Vice President and Chief April 28, 1999
- ------------------------------------------- Financial Officer
Timothy H. Taylor (principal financial and accounting
officer)
/s/ Steven D. Fifield Director April 28, 1999
- -------------------------------------------
Steven D. Fifield
/s/ Karl H. Horn Director April 28, 1999
- -------------------------------------------
Karl H. Horn
/s/ Michael Levitt Director April 28, 1999
- -------------------------------------------
Michael Levitt
/s/ Rodney D. Lubeznik Director April 28, 1999
- -------------------------------------------
Rodney D. Lubeznik
/s/ Michael Tang Director April 28, 1999
- -------------------------------------------
Michael Tang
Director April 28, 1999
- -------------------------------------------
William H. Wendt III
</TABLE>
II-10
<PAGE> 12
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------ -----------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 4.1 to Corus
Bankshares' Registration Statement on Form S-8 dated May 22, 1998 (File No. 333-53385)(the "Form
S-8"))
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit 4.2 to the Form S-8)
4.3 Corus Bankshares 1999 Stock Option Plan
5 Opinion of Mayer, Brown & Platt
23.1 Consent of Mayer, Brown & Platt (included in its opinion filed as Exhibit 5 hereto)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG LLP
24 Power of Attorney (included on page II-9)
</TABLE>
II-11
<PAGE> 1
EXHIBIT 4.3
CORUS BANKSHARES, INC.
1999 STOCK OPTION PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND EFFECTIVE DATE OF PLAN
1.1 Establishment of the Plan. CORUS BANKSHARES, INC. (hereinafter
referred to as the "Company"), hereby establishes an incentive compensation plan
to be known as the "1999 Stock Option Plan" (hereinafter referred to as the
"Plan"), as set forth in this document. The Plan permits the grant of incentive
stock options, nonqualified stock options, stock appreciation rights, and
restricted stock to Key Employees. Subject to ratification by a majority of the
shareholders of the Company at the Company's 1999 annual meeting of its
Shareholders, the Plan shall become effective as of February 17, 1999 (the
"Effective Date"), and shall remain in effect as provided in Section 1.3 herein.
Awards may be granted hereunder on or after the Effective Date, but in no event
be exercisable or payable to a Participant prior to such stockholder approval;
and, if such approval is not obtained within twelve (12) months after the
Effective Date, such awards shall be of no force and effect.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
success of the Company by providing incentives to Key Employees that will link
their personal interests to the longterm financial success of the Company and to
the growth in shareholder value. The Plan is intended to provide flexibility to
the Company in its ability to motivate, attract, and retain the services of Key
Employees upon whose judgment, interest, and special effort the successful
conduct of its operation is largely dependent.
1.3 Duration of the Plan. The Plan shall commence on the Effective
Date, as described in Section 1.1. herein, and shall remain in effect, subject
to the right of the Board of Directors to terminate the Plan at any time
pursuant to Article 12, until all Stock subject to it shall have been purchased
or acquired according to the provisions herein. However, in no event may an
Award be granted under the Plan on or after the tenth (10th) anniversary of the
Plan's Effective Date.
ARTICLE 2. DEFINITIONS AND CONSTRUCTION
2.1 Definitions. Whenever used in the Plan, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized:
(a) "Award" means, individually or collectively, a grant under this
Plan of Incentive Stock Options, Nonqualified Stock Options, Stock
Appreciation Rights or Restricted Stock.
(b) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
<PAGE> 2
(c) "Board" or "Board of Directors" means the Board of Directors of the
Company.
(d) "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have
been satisfied:
(i) a change in the ownership of fifty percent (50%) or more of the
Corporation's outstanding common stock, within a twelve month
period; or,
(ii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting Stock
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 80% of the total
voting power represented by the Voting Stock or the voting
securities of such surviving entity outstanding immediately after
such merger or consolidation, or
(iii) The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets. However, in no event shall a Change in Control be
deemed to have occurred, with respect to a Participant, if the
Participant is part of a purchasing group which consummates the
Change in Control transaction. The Participant shall be deemed
"part of a purchasing group..." for purposes of the preceding
sentence if the Participant is an equity participant or has agreed
to become an equity participant in the purchasing company or group
(except for (a) passive ownership of less than 5% of the Stock of
the purchasing company or (b) ownership of equity participation in
the purchasing company or group which is otherwise not deemed to be
significant, as determined prior to the Change in Control by a
majority of the nonemployee continuing directors). The Board has
final authority to determine the exact date on which a change in
control has been deemed to have occurred under (i), (ii), and (iii)
above.
(e) "Cause" means:
(i)misappropriation of any funds or property of the Corporation; or
(ii) attempting to obtain any personal profit from any transaction
in which the Participant has a personal financial interest, unless
the Participant shall have first obtained the consent of the Board
of Directors; or
(iii) material neglect or refusal to perform the duties reasonably
assigned to the Participant, or
<PAGE> 3
(iv) participating in a course of conduct which is injurious to the
reputation of the Company or its subsidiaries; or
(v) being convicted of a felony; or
(vi) being adjudicated a bankrupt, or
(vii) suspension due to the direction of any authorized bank
regulatory agency.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(g) "Committee" means the Stock Option Committee of the Board, or any
other committee appointed by the Board to administer the Plan pursuant
to Article 3 herein.
(h) "Company" means CORUS BANKSHARES, INC., a bank holding corporation
or any successor thereto as provided in Article 15 herein.
(i) "Disability" means a permanent and total disability as determined
by the Committee in good faith, upon receipt of sufficient competent
medical advice.
(j) "Fair Market Value" on a specified date means the average of the
bid and asked closing prices at which one Share is traded on the
over-the-counter market on that date, as reported on the National
Association of Securities Dealers Automated Quotation system
("NASDAQ"), or the closing price at which a Share is listed if listed
as a national market security on NASDAQ or on a national securities
exchange on which Shares are primarily traded; but if no Shares were
traded on such date, then on the last previous date on which a Share
was so traded, or if none of the above is applicable, the value of a
Share as established by the Committee for such date using any
reasonable method of valuation.
(k) "Incentive Stock Option" or "ISO" means an Option, granted under
Article 6 herein, which is designated as an Incentive Stock Option and
is intended to meet the requirements of Section 422(b) of the Code.
(l) "Key Employee" means an employee of the Company or one of its
Subsidiaries, including an employee who is an officer or a director of
the Company or one of its Subsidiaries, who, in the opinion of members
of the Committee, can contribute significantly to the growth and
profitability of the Company. "Key Employee" also may include those
employees, identified by the Committee, in situations concerning
extraordinary performance, promotion, retention, or recruitment. The
granting of an Award under this Plan shall be deemed a determination by
the Committee that such employee is a Key Employee.
(m) "Nonqualified Stock Option" or "NSO" means an Option, granted under
Article 6 herein, which is not intended to be an Incentive Stock
Option.
(n) "Option" means an Incentive Stock Option or a Nonqualified Stock
Option. Subject to the terms and conditions of the Plan (including but
not limited to
<PAGE> 4
Section 6.12) and of the relevant Option agreement, the grant of an
Option entitles the Participant to purchase Shares at an Exercise Price
established by the Committee.
(o) "Participant" means a Key Employee of the Company who has been
granted an Award under the Plan.
(p) "Period of Restriction" means the period during which the transfer
of Shares of Restricted Stock is restricted, during which the
Participant is subject to a substantial risk of forfeiture, pursuant to
Article 8 herein.
(q) "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, including a group as defined in Section 13(d).
(r) "Plan" means the CORUS BANKSHARES, INC. 1999 Stock Option Plan, as
herein described.
(s) "Restricted Stock" means a Stock Award granted to a Participant
pursuant to Article 8 herein.
(t) "Stock" or "Shares" means the common stock of the Company.
(u) "Stock Appreciation Right" and "SAR" mean the right to receive a
payment from the Company equal to the excess of the Fair Market Value
of a share of Stock at the date of exercise over a specified price
fixed by the Committee, which shall not be less than 100% of the Fair
Market Value of the Stock on the date of grant.
(v) Subsidiary means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the
time of the granting of the Option, each of the corporations, other
than the last corporation in the unbroken chain owns stock possessing
50 percent or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
2.2 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
2.3 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
ARTICLE 3. ADMINISTRATION
3.1 The Committee. The authority to control and manage the operation
and administration of the Plan shall be vested in a committee (the "Committee")
consisting of not less than two directors who shall be appointed from time to
time by, and shall serve at the discretion of, the Board of Directors. Each
member of the Committee shall be a "non-employee director"
<PAGE> 5
for purposes of Rule 16b-3 promulgated under the Securities Exchange Act of 1934
and an "outside director" for purposes of Code Section 162(m) and the
regulations thereunder.
3.2 Authority of the Committee. Subject to the provisions of the Plan,
the Committee shall have full power to construe and interpret the Plan; to
establish, amend or waive rules and regulations for its administration; to make
all other determinations that may be necessary or advisable for the
administration of the Plan; to accelerate the exercisability of any Award or the
end of a Period of Restriction or the termination of any Award Agreement, or any
other instrument relating to an Award under the Plan; and (subject to the
provisions of Article 12 herein) to amend the terms and conditions of any
outstanding Option, or Restricted Stock Award to the extent such terms and
conditions are within the discretion of the Committee as provided in the Plan.
Notwithstanding the foregoing, no action of the Committee may, without the
consent of the person or persons entitled to exercise any outstanding Option or
to receive payment of any other outstanding Award, adversely affect the rights
of such person or persons.
3.3 Selection of Participants. The Committee shall have the authority
to grant Awards under the Plan, from time to time, to such Key Employees
(including officers and directors who are employees) as may be selected by it,
in its discretion and to determine the time or times of receipt, to determine
the types of Awards, and the number of Shares covered by the Awards, to
establish the terms, conditions, performance criteria, restrictions and all
other terms, conditions and provisions of such Awards. The Committee shall
select Participants from among those whom they have identified as being Key
Employees.
3.4 Decisions Binding. All interpretations, determinations and
decisions made by the Committee pursuant to the provisions of the Plan shall be
final, conclusive and binding on all persons, including the Company, its
Subsidiaries, stockholders, Employees, Participants and their estates and
beneficiaries.
3.5 Delegation of Certain Responsibilities. The Committee may, in its
sole discretion, delegate to appropriate officers of the Company the
administration of the Plan under this Article 3, provided that the Committee may
not delegate its authority to correct errors, omissions or inconsistencies in
the Plan. All authority delegated by the Committee under this Section 3.5 shall
be exercised in accordance with the provisions of the Plan and any guidelines
for the exercise of such authority that may from time to time be established by
the Committee.
3.6 Procedures of the Committee. All determinations of the Committee
shall be made by not less than a majority of its members present at the meeting
(in person or otherwise) at which a quorum is present. A majority of the entire
Committee shall constitute a quorum for the transaction of business. Any action
required or permitted to be taken at a meeting of the Committee may be taken
without a meeting if a unanimous written consent, which sets forth the action,
is signed by each member of the Committee and filed with the minutes for
proceedings of the Committee. No member of the Committee shall be liable, in the
absence of bad faith, for any act or omission with respect to his or her other
services on the Committee. Service on the Committee shall constitute service as
a director of the Company so that members of the
<PAGE> 6
Committee shall be entitled to indemnification (as provided in Article 14
herein), and limitation of liability and reimbursement with respect to their
services as members of the Committee to the same extent as for services as
directors of the Company.
3.7 Award Agreements. Each Award under the Plan shall be evidenced by
an award agreement which shall be signed by an officer of the Company and by the
Participant, and shall contain such terms and conditions as may be approved by
the Committee, which need not be the same in all cases. Any award agreement may
be supplemented or amended in writing from time to time as approved by the
Committee, provided that the terms of such agreements as amended or
supplemented, as well as the terms of the original award agreement, are not
inconsistent with the provisions of the Plan.
Nothing contained in the Plan or any resolutions adopted or to be
adopted by the Board of Directors or by the stockholders of the Company shall
constitute the granting of an Award under the Plan. An Employee who receives an
Award under the Plan will not, with respect to such Award, be deemed to have
become a Participant, or to have any rights with respect to such Award, unless
and until such Employee has executed an award agreement or other instrument
evidencing the Award and shall have delivered an executed copy thereof to the
Company, and has otherwise complied with the applicable terms and conditions of
the Award.
3.8 Form and Time of Elections. Unless otherwise specified herein, each
election required or permitted to be made by any Participant or other person
entitled to benefits under the Plan, and any permitted modification, or
revocation thereof, shall be in writing filed with the Committee at such times,
in such form, and subject to such restrictions and limitations, not inconsistent
with the terms of the Plan, as the Committee shall require.
3.9 Information to be Furnished to the Committee. The Company shall
furnish the Committee with such data and information as it determines may be
required for it to discharge its duties. The records of the Company as to an
Employee's or Participant's employment, termination of employment, leave of
absence, reemployment and compensation shall be conclusive on all persons unless
determined to be incorrect. Participants and other persons entitled to benefits
under the Plan must furnish the Committee such evidence, data or information as
the Committee considers desirable to carry out the terms of the Plan.
ARTICLE 4. STOCK SUBJECT TO THE PLAN
4.1 The Shares with respect to which Awards may be made under the Plan
shall be Shares currently authorized but unissued..
4.2 Subject to the following provisions of this subsection 4.2, the
maximum number of Shares that may be granted to Participants and their
beneficiaries under the Plan shall be 1,000,000 Shares.
<PAGE> 7
(a) To the extent provided by the Committee, any Award may be settled
in cash rather than Stock. To the extent any Shares covered by an Award
are not delivered to a Participant or beneficiary because the Award is
forfeited, terminated, lapses or expires, or the Shares are not
delivered because the Award is settled in cash or used to satisfy the
applicable tax withholding obligation, such Shares shall nevertheless
be deemed delivered for purposes of determining the maximum number of
Shares available for delivery under the Plan.
(b) If the exercise price of any stock option granted under the Plan or
any Prior Plan is satisfied by tendering Shares to the Company pursuant
to Section 6.6(b), the total number of Shares issued shall be deemed
delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan.
(c) Subject to paragraph 4.2(d), the following additional maximums are
imposed under the Plan.
(i) The maximum number of Shares that may be issued by Options
intended to be ISOs shall be 100,000 Shares.
(ii) The maximum number of Shares that may be covered by Awards
granted to any one individual pursuant to Article 6 and Article 7
(relating to Options and SARs) shall be 250,000 Shares during any
one calendar-year period. To the extent required by Section 162(m)
of the Code and so long as 162(m) is applicable to persons eligible
to participate in the Plan, Shares of Stock subject to the
foregoing limit with respect to which the related Award is
terminated, surrendered or canceled shall not again be available
for grant under this limit.
(iii) The maximum number of Shares that may be issued in
conjunction with Awards granted pursuant to Article 8 (relating to
Other Stock Awards) shall be 100,000 Shares.
(d) Adjustments in Authorized Shares. In the event of any merger,
reorganization, split-up, spin-off, consolidation, recapitalization,
separation, liquidation, extraordinary cash dividend, Stock dividend,
Stock split, share combination, exchange of shares, or other change in
the corporate structure of the Company affecting the Stock, such
adjustment shall be made in the number and class of Shares which may be
granted and delivered under the Plan, and in the number and class of
and/or price of Shares subject to outstanding Options, SARs and
Restricted Stock Awards granted under the Plan, as may be determined to
be appropriate and equitable by the Committee, in its sole discretion,
to prevent dilution or enlargement of rights; and provided that the
number of Shares subject to any Award shall always be a whole number.
Any adjustment of an Incentive Stock Option under this paragraph shall
be made in such a manner so as not to constitute a "modification"
within the meaning of Section 424(h)(3) of the Code.
<PAGE> 8
4.3. General Restrictions. Delivery of Shares or other amounts under
the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any shares of Stock under the Plan or make
any other distribution of benefits under the Plan unless such delivery
or distribution would comply with all applicable laws (including,
without limitation, the requirements of the Securities Act of 1933),
and the applicable requirements of any securities exchange or similar
entity.
(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of Shares, the issuance may be
effected in the discretion of the Committee on a non-certificated
basis, to the extent not prohibited by applicable law or the applicable
rules of any stock exchange.
4.4. Grant and Use of Awards. In the discretion of the Committee, a
Participant may be granted any Award permitted under the provisions of the Plan,
and more than one Award may be granted to a Participant. Awards may be granted
as alternatives to or replacement of awards granted or outstanding under the
Plan, or any other plan or arrangement of the Company (including a plan or
arrangement of a business or entity, all or a portion of which is acquired by
the Company). Subject to the overall limitation on the number of Shares that may
be delivered under the Plan, the Committee may use available Shares in the form
of payment for compensation, grants or rights earned or due under any other
compensation plans or arrangements of the Company, including the plans and
arrangements of the Company assumed in business combinations.
4.5. Settlement and Payments. Awards may be settled through cash
payments, the delivery of Shares, the granting of replacement Awards, or
combination thereof as the Committee shall determine. Any Award settlement, may
be subject to such conditions, restrictions and contingencies as the Committee
shall determine.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in this Plan include
all employees of the Company or a Subsidiary who, in the opinion of members of
the Committee, are Key Employees. "Key Employees" may include employees who are
members of the Board, but may not include directors who are not fulltime
employees.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may from time to time select from Key Employees, those to whom Awards
shall be granted and determine the nature and amount of each Award. No employee
shall have any right to be granted an Award under this Plan.
<PAGE> 9
ARTICLE 6. STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Key Employees at anytime and from time to time as
shall be determined by the Committee. Subject to Article 4, the Committee shall
have complete discretion in determining the number of Shares subject to Options
granted to each Participant. The Committee may grant any type of option to
purchase Stock that is permitted by law at the time of grant including, but not
limited to, ISOs and NSOs. However, no employee may receive an Award of
Incentive Stock Options that are first exercisable during any calendar year to
the extent that the aggregate Fair Market Value of the Stock (determined at the
time the options are granted) exceeds $100,000. Nothing in this Article 6 shall
be deemed to prevent the grant of NSOs in excess of the maximum established by
Section 422(d) of the Code.
6.2 Option Agreement. Each Option grant shall be evidenced by an Option
agreement that shall specify the type of Option granted, the Exercise Price, the
duration of the Option, the number of Shares to which the Option pertains, and
such other terms and provisions as the Committee shall determine. The Option
agreement shall specify whether the Option is intended to be an Incentive Stock
Option within the meaning of Section 422(b) of the Code, or a Nonqualified Stock
Option whose grant is intended not to fall under the Code provisions of Section
422(b). Unless otherwise expressly provided at the time of grant, Options
granted under the Plan will be NSOs.
6.3 Exercise Price. The "Exercise Price" of each Option and SAR granted
under this Article 6 and Article 7 shall be established by the Committee or
shall be determined by a method established by the Committee at the time that
the Option or SAR is granted; except that the Exercise Price shall not be less
than 100% of the Fair Market Value of a Share on the date of grant.
An Incentive Stock Option granted to an Employee who, at the time of
grant, owns (within the meaning of Section 424(d) of the Code) Stock possessing
more than 10% of the total combined voting power of all classes of Stock of the
Company, shall have an exercise price which is at least 110% of the Fair Market
Value of the Stock subject to the Option.
6.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant provided, however, that (i)
subject to clause (ii), no ISO shall be exercisable later than the tenth (10th)
anniversary date of its grant; and (ii) in the case of an individual described
in the second paragraph of Section 6.3, no ISO shall be exercisable later than
the fifth (5th) anniversary date of its grant.
6.5 Exercise of Options. Options granted under the Plan shall be
exercisable, on such terms and conditions and during such periods as the
Committee shall in each instance establish, which need not be the same for all
Participants.
<PAGE> 10
6.6 Payment. Options shall be exercised by the delivery of a written
notice to the Company setting forth the number of Shares of Stock with respect
to which the Option is to be exercised, accompanied by full payment for the
Shares, subject to the following:
(a) the full Exercise Price for Shares purchased upon the exercise of
any Option shall be paid at the time of such exercise (except that, in
the case of an exercise arrangement approved by the Committee and
described in paragraph (c), payment may be made as soon as practicable
after the exercise).
(b) The Exercise Price shall be payable in cash or, if permitted by the
Committee, by tendering, by either actual delivery of Shares or by
attestation, Shares acceptable to the Committee in its discretion, and
valued at Fair Market Value as of the day of exercise, or in any
combination of cash and shares thereof, as determined and permitted by
the Committee.
(c) The Committee may, in its discretion, permit a Participant to elect
to pay the Exercise Price upon the exercise of an Option by irrevocably
authorizing a third party to sell Shares (or a sufficient portion of
the Shares) acquired upon exercise of the Option and remit to the
Company a sufficient portion of the sale proceeds to pay the entire
Exercise Price and any tax withholding resulting from such exercise.
The proceeds from such a payment shall be added to the general funds of
the Company and shall be used for general corporate purposes.
As soon as practicable, after receipt of written notification and
payment, the Company shall deliver to the Participant Stock certificates in an
appropriate amount based upon the number of Options exercised, issued in the
Participant's name.
Notwithstanding the foregoing, the Committee may permit the Participant
to defer the delivery of such shares on such terms and conditions as the
Committee shall establish.
6.7 Restrictions on Stock Transferability. The Committee shall impose
such restrictions on any Stock acquired pursuant to the exercise of an Option
under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities law, under the requirements of
any stock exchange upon which such Stock is then listed and under any blue sky
or state securities laws applicable to such Shares.
6.8 Termination of Employment Due to Death or Disability. In the event
the employment of a Participant is terminated by reason of death, any
outstanding Options shall become 100% vested and immediately exercisable at any
time prior to the expiration date of the Options or within 90 days after such
date of termination of employment, whichever period is shorter, by such person
or persons as shall have acquired the Participant's rights under the Option by
will or by the laws of descent and distribution. In the event the employment of
a Participant is terminated by reason of Disability, any outstanding Options
shall become 100% vested and immediately exercisable at any time prior to the
expiration date of the Options or within 90 days
<PAGE> 11
after such date of termination of employment, whichever period is shorter. In
the case of Incentive Stock Options, the favorable tax treatment prescribed
under Section 422(b) of the Internal Revenue Code of 1986, as amended may not be
available if the options are not exercised within the Section 422(b) prescribed
time period after termination of employment for death, disability, or
retirement.
6.9 Termination of Employment for Other Reasons. If the employment of a
Participant shall terminate for any reason other than death, disability or for
Cause, all outstanding Options that have not become vested and exercisable as of
his date of termination shall terminate immediately on that date. All
outstanding Options that have become vested and exercisable as of his date of
termination shall terminate one month after such date of termination. In its
sole discretion, the Committee may extend the exercisability of any outstanding
Option that was vested and exercisable as of his date of termination for up to
90 days, but in no event beyond the expiration date of the Option.
If the employment of a Participant shall terminate for Cause, rights
under all outstanding Options shall be immediately terminated upon termination
of employment.
6.10 Nontransferability of Options. Except as otherwise provided by the
Committee in the applicable Option agreement, no Option granted under the Plan
may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, otherwise than by will or by the laws of descent and distribution.
Unless otherwise determined by the Committee in accordance with the provisions
of the immediately preceding sentence, an Award may be exercised during the
lifetime of a Participant only by the Participant or during the period that the
Participant is under a legal disability by the Participant's guardian or legal
representative.
6.11 Rule 16b-3 Requirements. Notwithstanding any other provision of
the Plan, the Committee may impose such conditions on exercise of an Option
(including without limitation the right of the Committee to limit the time of
exercise to specified periods) as may be necessary to satisfy the requirements
of Rule 16b-3.
6.12 Settlement in Cash. Pursuant to, and not in limitation of,
Sections 4.2(a) and 4.5, upon the exercise of an Option by a Participant, the
Committee may in its discretion pay to the Participant in lieu of Shares, an
amount in cash equal to the excess of (a) the Fair Market Value at the time of
exercise of the number of Shares of Stock with respect to which the Participant
is exercising his Option; over (b) the total Exercise Price for such Shares
established by the Committee; reduced by (c) withholding for all applicable
taxes.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 Grant of Stock Appreciation Rights. Subject to the provisions of
Articles 1 and 4, Stock Appreciation Rights ("SARs") may be granted to
Participants at any time and from time to time as shall be determined by the
Committee.
<PAGE> 12
7.2 Exercise of SARs. SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes upon the SARs.
7.3 Payment of SAR Amount. Upon exercise of the SAR, the holder shall
be entitled to receive payment of an amount (subject to Section 7.5 below)
determined by multiplying:
(a) The difference between the Fair Market Value of a share of Stock at
the date of exercise over the Exercise Price (determined at Section
6.3) by
(b) The number of Shares with respect to which the Stock Appreciation
Right is exercised.
7.4 Form and Timing of Payment. At the discretion of the Committee,
payment for SARs may be made in cash or Stock, or in a combination thereof.
7.5 Limit on Appreciation. At the time of grant, the Committee may
establish in its sole discretion, a maximum amount per share which will be
payable upon exercise of an SAR.
7.6 Rule 16b3 Requirements. Notwithstanding any other provision of the
Plan, the Committee may impose such conditions on exercise of an SAR (including,
without limitation, the right of the Committee to limit the time of exercise to
specified periods) as may be required to satisfy the requirements of Rule 16b3.
7.7 Term of SAR. The term of an SAR granted under the Plan shall not
exceed 20 years.
7.8 Termination of Employment. In the event the employment of a
Participant is terminated by reason of death, Disability, Retirement, or any
other reason, any SARs outstanding shall terminate in the same manner as
specified for Options under Sections 6.8 and 6.9 herein.
7.9 Nontransferability of SARs. Except as otherwise provided by the
Committee in the applicable Award agreement, no SAR granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. Unless
otherwise determined by the Committee in accordance with the provisions of the
immediately preceding sentence, an Award may be exercised during the lifetime of
a Participant only by the Participant or during the period that the Participant
is under a legal disability by the Participant's guardian or legal
representative.
ARTICLE 8. RESTRICTED STOCK
8.1 Grant of Restricted Stock. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock under the Plan to such Participants and in such amounts as it
shall determine.
<PAGE> 13
8.2 Restricted Stock Agreement. Each Restricted Stock grant shall be
evidenced by a Restricted Stock Agreement that shall specify the Period of
Restriction, or periods, the number of Restricted Stock Shares granted, and such
other provisions as the Committee shall determine.
8.3 Transferability. Except as provided in this Article 8, the Shares
of Restricted Stock granted hereunder may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the termination of the
applicable Period of Restriction or for such period of time as shall be
established by the Committee and as shall be specified in the Restricted Stock
Agreement, or upon earlier satisfaction of other conditions as specified by the
Committee in its sole discretion and set forth in the Restricted Stock
Agreement. All rights with respect to the Restricted Stock granted to a
Participant under the Plan shall be exercisable during his lifetime only by such
Participant.
8.4 Other Restrictions. The Committee shall impose such other
restrictions on any Shares of Restricted Stock granted pursuant to the Plan as
it may deem advisable including, without limitation, restrictions under
applicable Federal or state securities laws, and may legend the certificates
representing Restricted Stock to give appropriate notice of such restrictions.
8.5 Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 8.4 herein, each certificate representing
Shares of Restricted Stock granted pursuant to the Plan shall bear the following
legend:
"The sale or other transfer of the Shares of Stock represented by this
certificate, whether voluntary, involuntary, or by operation of law, is subject
to certain restrictions on transfer set forth in the 1999 Stock Option Plan of
CORUS BANKSHARES, INC., in the rules and administrative procedures adopted
pursuant to such Plan, and in a Restricted Stock Agreement dated _____________.
A copy of the Plan, such rules and procedures, and such Restricted Stock
Agreement may be obtained from the Secretary of CORUS BANKSHARES, INC."
8.6 Removal of Restrictions. Except as otherwise provided in this
Article, Shares of Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the Participant after the
last day of the Period of Restriction. Once the Shares are released from the
restrictions, the Participant shall be entitled to have the legend required by
Section 8.5 removed from his Stock certificate.
8.7 Voting Rights. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may exercise full voting
rights with respect to those Shares.
8.8 Dividends and Other Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock granted hereunder
shall be entitled to receive all dividends and other distributions paid with
respect to those Shares while they are so held. If any such dividends or
distributions are paid in Shares of Stock, the Shares shall be subject to the
same restrictions on transferability as the Shares of Restricted Stock with
respect to which they were paid.
<PAGE> 14
8.9 Termination of Employment Due to Death or Disability. In the event
a Participant's employment is terminated because of death or Disability during
the Period of Restriction, any remaining Period of Restriction applicable to the
Restricted Stock pursuant to Section 8.3 herein shall automatically terminate
and, except as otherwise provided in Section 8.4, the Shares of Restricted Stock
shall thereby be free of restrictions and fully transferable.
8.10 Termination of Employment for Other Reasons. In the event that a
Participant terminates his employment with the Company for any reason other than
for Death or Disability as set forth in Section 8.9 herein, during the Period of
Restriction, then any Shares of Restricted Stock still subject to restrictions
as of the date of such termination shall automatically be forfeited and returned
to the Company; provided, however, that, in the event of an involuntary
termination of the employment of a Participant by the Company other than for
Cause, the Committee, in its sole discretion, may waive the automatic forfeiture
of any or all such Shares and may add such new restrictions to such Shares of
Restricted Stock as it deems appropriate.
8.11 Nontransferability of Restricted Stock. No shares of Restricted
Stock granted under the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, otherwise than by will or by the laws of
descent and distribution until the termination of the applicable Period of
Restriction. All rights with respect to Restricted Stock granted to a
Participant under the Plan shall be exercisable during his lifetime only by such
Participant.
ARTICLE 9. BENEFICIARY DESIGNATION
9.1 Beneficiary Designation. Each Participant under the Plan may, from
time to time, name any beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit under the Plan is to be paid
in case of his death before he receives any or all of such benefit. Each
designation will revoke all prior designations by the same Participant, shall be
in a form prescribed by the Committee, and will be effective only when filed by
the Participant in writing with the Committee during his lifetime. In the
absence of any such designation, benefits remaining unpaid at the Participant's
death shall be paid to the Participant's estate.
ARTICLE 10. RIGHTS OF EMPLOYEES
10.1 Participation. No Employee shall have a right to be selected as a
Participant, or having been so selected, to be selected again as a Participant.
Neither a Participant nor any other person shall, by reason of participation in
the Plan, acquire any right in or title to any assets, funds or property of the
Company whatsoever, including, without limitation, any specific funds, assets,
or other property which the Company or any subsidiary, in its sole discretion,
may set aside in anticipation of a liability under the Plan. A Participant shall
have only a contractual right to the Stock or amounts, if any, payable under the
Plan, unsecured by any assets of the Company, and nothing contained in the Plan
shall constitute a guarantee that the assets of the Company shall be sufficient
to pay any benefits to any person.
<PAGE> 15
10.2 Employment. Nothing in the Plan shall interfere with or limit in
any way the right of the Company to terminate any Participant's employment at
any time, nor confer upon any Participant any right to continue in the employ of
the Company. Except as otherwise provided in the Plan, no Award under the Plan
shall confer upon the holder thereof any rights as a shareholder of the Company
prior to the date on which the individual fulfills all conditions for receipt of
such rights.
ARTICLE 11. CHANGE IN CONTROL
11.1 In General. In the event of a Change in Control of the Company as
defined, all Awards under the Plan shall vest 100%, whereupon all Options shall
become exercisable in full, the restrictions applicable to Restricted Stock
shall terminate, and SARs shall be paid out.
ARTICLE 12. AMENDMENT, MODIFICATION, AND TERMINATION
12.1 Amendment, Modification, and Termination. With the approval of the
Board, at any time and from time to time, the Committee may terminate, amend, or
modify the Plan. However, without the approval of the stockholders of the
Company no such termination, amendment or modification may:
(a) Increase the total number of Shares of Stock which may be issued
under this Plan, either in the aggregate or to an individual, except as
provided in Section 4.2(d) herein;
(b) Change the class of Employees eligible to participate in the Plan;
or
(c) Change the provisions of the Plan regarding Option Exercise Price.
12.2 Awards, Previously Granted. No termination, amendment or
modification of the Plan shall in any manner adversely affect any Award
theretofore granted under the Plan, without the written consent of the
Participant.
ARTICLE 13. WITHHOLDING
13.1 Tax Withholding. All distributions under the Plan are subject to
withholding of all applicable taxes, and the Committee may condition the
delivery of any cash, Shares or other benefits under the Plan on satisfaction of
the applicable withholding obligations. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the Company,
an amount sufficient to satisfy Federal, State and local taxes (including the
Participant's FICA obligation) required by law to be withheld with respect to
any grant, exercise, or payment made under or as a result of this Plan.
13.2 Stock Withholding Elections. Subject to the consent of the
Committee, due to the exercise of a (a) Nonstatutory (Nonqualified) Stock
Option, (b) lapse of restrictions on Restricted Stock, or (c) the issuance of
any other Stock Award under the Plan, a Participant may make an irrevocable
election to (i) have shares of Stock otherwise issuable under (a) withheld, or
(ii)
<PAGE> 16
tender back to the Company shares of Stock received pursuant to (a), (b), or
(c), or (iii) deliver back to the Company previously acquired shares of Stock
(by actual delivery or attestation) having a Fair Market Value sufficient to
satisfy all or part of the Participant's estimated total federal, state, and
local tax obligations associated with the transaction. Such elections must be
made by a Participant on or prior to the date of exercise. The Committee may
disapprove of any election, may suspend or terminate the right to make
elections, or may provide with respect to any Award under the Plan that the
right to make elections shall not apply to such Awards.
ARTICLE 14. INDEMNIFICATION
14.1 Indemnification. Each person who is or shall have been a member of
the Committee, or of the Board, shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit, or proceeding to which he may be a party or in which he
may be involved by reason of any action taken or failure to act under the Plan
and against and from any and all amounts paid by him in settlement thereof, with
the Company's approval, or paid by him in satisfaction of any judgment in any
such action, suit, or proceeding against him, provided he shall give the Company
an opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company's Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the
Company may have to indemnify them or hold them harmless.
ARTICLE 15. SUCCESSORS
15.1 Successors. All obligations of the Company under the Plan, with
respect to Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation or otherwise, of all or substantially
all of the business and/or assets of the Company.
ARTICLE 16. REQUIREMENTS OF LAW
16.1 Requirements of Law. The granting of Awards and the issuance of
Shares of Stock under this Plan shall be subject to all applicable laws, rules,
and regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
16.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Illinois.
<PAGE> 1
EXHIBIT 5
April 30, 1999
Corus Bankshares, Inc.
3959 North Lincoln Avenue
Chicago, IL 60613
Re: Registration Statement on Form S-8
1999 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Corus Bankshares, Inc., a Minnesota
corporation ("Corus" or the "Company"), in connection with the proceedings (the
"Company Proceedings") taken and to be taken relating to the registration by
Corus of an aggregate of 1,000,000 of its shares of common stock, par value $.05
per share (the "Common Stock"), with the Securities and Exchange Commission (the
"SEC") in connection with the Corus Bankshares 1999 Stock Option Plan (the
"Plan"). We have also participated in the preparation and filing with the SEC
under the Securities Act of 1933, as amended, of a registration statement on
Form S-8 (the "Registration Statement") relating to the Common Stock to be
issued pursuant to the Plan.
As counsel to Corus, we have examined originals or copies certified to
our satisfaction of the Company's Amended and Restated Articles of Association
and Bylaws, resolutions of the Board of Directors and such other Company
records, instruments, certificates and documents and such questions of law as we
considered necessary or appropriate to enable us to express this opinion. As to
certain facts material to our opinion, we have relied, to the extent we deem
such reliance proper, upon certificates of public officials and officers of
Corus. In rendering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of photostatic copies.
Based upon and subject to the foregoing and to the assumptions,
limitations and conditions set forth herein, we are of the opinion that, upon
completion of the Company Proceedings, the Common Stock will have been validly
issued and delivered in accordance with the Company Proceedings and the Plan,
the Common Stock will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ MAYER, BROWN & PLATT
<PAGE> 1
EXHIBIT 23.2
[Arthur Andersen Letterhead]
To the Board of Directors and Shareholders
of Corus Bankshares, Inc.
As independent public accountants we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 18, 1999 incorporated by reference in Corus Bankshares, Inc. Form 10-K
for the year ended December 31, 1998 and to all references to our Firm included
in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
April 30, 1999
<PAGE> 1
EXHIBIT 23.3
[KPMG Letterhead]
The Board of Directors of
Corus Bankshares, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Corus Bankshares, Inc. of our report dated January 10, 1997,
relating to the consolidated financial statements of Corus Bankshares, Inc. and
subsidiaries as of and for the year ended December 31, 1996, which report
appears in the December 31, 1998 annual report on Form 10-K of Corus Bankshares,
Inc.
KPMG LLP
Chicago, Illinois
April 29, 1999
