<PAGE> 1
As filed with the Securities and Exchange Commission on August 23, 1999.
Registration No. 333-
-----------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
FIRST MANITOWOC BANCORP, INC.
-----------------------------
(Exact name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
WISCONSIN 6712 39-1435359
- ------------------------------- -------------- -------------------
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Code Number) Identification No.)
</TABLE>
402 NORTH EIGHTH STREET
MANITOWOC, WISCONSIN 54221-0010
(902) 684-6611
-------------------------------------
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
FIRST NATIONAL BANK IN MANITOWOC
401(K) PROFIT SHARING PLAN
------------------------------------
(Full title of the plan)
THOMAS J. BARE, PRESIDENT
FIRST MANITOWOC BANCORP, INC.
402 NORTH EIGHTH STREET
MANITOWOC, WISCONSIN 54221-0010
(902) 684-6611
- -------------------------------------------------------------------------------
(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
Copies to:
FRANK J. PELISEK, ESQ.
MICHAEL BEST & FRIEDRICH LLP
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WISCONSIN 53202
If any of the securities being registered on this Form S-8 are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. |x|
Total Number of Pages: 9
Exhibit Index on Page: 9
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1)(2) PER SHARE(3) OFFERING(3) FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$1.00 par value 200,000 $ 39.00 $7,800,000 $ 2,301
per share
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 200,000 shares reserved for issuance under the
First National Bank in Manitowoc 401(k) Profit Sharing Plan
(the "401(k) Plan").
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement
covers an indeterminate amount of interests to be offered or
sold pursuant to the 401(k) Plan (including any interests in
the 401(k) Plan trust) described herein.
(3) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h)(1). The proposed
maximum offering price per share is based upon the average of
the bid and ask price for the common stock.
-2-
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I will be included in documents
sent or given to participants in First National Bank in Manitowoc
401(k) Profit Sharing Plan (the "401(k) Plan"). Such documents are not
being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 in
reliance on Rule 428.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by First Manitowoc Bancorp, Inc.
(the "Company" or "Registrant") with the Commission are incorporated
herein by reference and made a part hereof:
(a) The Company's Registration Statement on Form 10 for
the fiscal year ended December 31, 1998 (File No.
0-25983), which includes the consolidated financial
statements of the Company as of December 31, 1998,
1997 and 1996, the related consolidated statements of
income, stockholders' equity and comprehensive
income, and cash flows for each of the three years in
the period ended December 31, 1998, and the
consolidated statements of financial condition as of
December 31, 1998 and 1997, together with the related
notes and Report of Independent Auditors of the
Company (dated January 29, 1999).
(b) All other reports filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the
last fiscal year for which financial statements were
included in the report referred to in (a) above.
(c) The description of the Company's Common Stock
included in the Company's Registration Statement on
Form 10 (File No. 0-25983).
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
-3-
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Company is
required to indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if such person was a party
because he or she was a director or officer of the Company. In all other cases,
the Company is required by Section 180.0851(2) to indemnify a director or
officer of the Company, unless it is determined that he or she breached or
failed to perform a duty owned to the Company and the breach or failure to
perform constitutes: (i) a willful failure to deal fairly with the Company or
its shareholders in connection with a matter in which the director or officer
has a material conflict of interest; (ii) a violation of criminal law, unless
the director or officer had reasonable cause to believe his or her conduct was
unlawful; (iii) a transaction from which the director or officer derived an
improper personal profit; or (iv) willful misconduct. Section 180.0858(1)
provides that, subject to certain limitations, the mandatory indemnification
provisions do not preclude any additional right to indemnification or allowance
of expenses that a director or officer may have under the Company's articles of
incorporation, bylaws, a written agreement or a resolution of the Board of
Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification, allowance
of expenses and insurance to the extent required to be permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or any
person asserting rights on behalf of the corporation or its shareholders, for
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Section 180.0833 of the WBCL provides that with certain
exceptions, directors of the Company against whom claims are asserted with
respect to the declaration of improper dividends or distributions to
shareholders or certain other improper acts which they approved are entitled to
contribution from other directors who approved such actions and from
shareholders who knowingly accepted an improper dividend or distribution, as
provided therein.
The Company has obtained Directors' and Officers' Liability Insurance
which provides insurance against certain civil liabilities, including certain
liabilities under the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the
Exhibit Index on page 9 of this Registration Statement, which Exhibit Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
-4-
<PAGE> 5
(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;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
(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 (1)(i) and (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 with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement.
(2) For the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) For purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the 401(k) Plan's
annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) The Registrant undertakes to deliver or cause to be delivered
with the prospectus, if not already delivered, the latest
annual report to security holders that is incorporated by
reference in the prospectus and furnished to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Exchange Act,
unless such employee otherwise has received a copy of such
report, in which case the Registrant shall state in the
prospectus that it will promptly furnish, without charge, a
copy of such report on written or oral request of the
employee, and where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth
in the prospectus, to deliver or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission, such
indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
-5-
<PAGE> 6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
FIRST MANITOWOC BANCORP, INC. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S8 AND HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF MANITOWOC, STATE OF
WISCONSIN ON JUNE 21, 1999.
FIRST MANITOWOC BANCORP, INC.
By: /s/ Thomas J. Bare
---------------------------------
Thomas J. Bare, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas J. Bare and Paul H.
Wojta, and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this registration statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them acting singly, full power and
authority to do and perform each and every act and thing necessary and requisite
to be done, 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 may lawfully do or cause to be done by virtue hereof.
-6-
<PAGE> 7
SIGNATURE TITLE DATE
- ------------------------- -------------------- -------------------
/s/ Thomas J. Bare President (Principal
- ------------------------- Executive Officer)
Thomas J. Bare
/s/ Paul H. Wojta Vice President, Cashier and
- ------------------------- BSA Officer (Principal Financial
Paul H. Wojta Officer)
/s/ John M. Jagemann Director
- -------------------------
John M. Jagemann
/s/ John C. Miller Director
- -------------------------
John C. Miller
/s/ John E. Nordstrom Director June 21, 1999.
- -------------------------
John E. Nordstrom
/s/ Craig A. Pauly Director
- -------------------------
Craig A. Pauly
/s/ Katherine M. Reynolds Director
- -------------------------
Katherine M. Reynolds
/s/ John M. Webster Director
- -------------------------
John M. Webster
/s/ Robert S. Weinert Director
- -------------------------
Robert S. Weinert
/s/ John J. Zimmer Director
- -------------------------
John J. Zimmer
-7-
<PAGE> 8
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED
THE TRUSTEES (OR OTHER PERSONS WHO ADMINISTER THE EMPLOYEE BENEFIT PLAN) HAVE
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF MANITOWOC AND THE STATE
OF WISCONSIN, ON THE 21ST DAY OF JUNE, 1999.
FIRST NATIONAL BANK IN MANITOWOC
401(K) PROFIT SHARING PLAN ADMINISTRATOR:
FIRST MANITOWOC BANCORP, INC.
By: /s/ Thomas J. Bare
--------------------------------------------
Thomas J. Bare, President
By: /s/ Paul H. Wojta
--------------------------------------------
Paul H. Wojta, Vice President, Cashier
and BSA Officer.
-8-
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NUMBER IN
REGULATION S-K SEQUENTIALLY
EXHIBIT NO. DESCRIPTION OF DOCUMENT NUMBERED COPY
- ---------------- ----------------------- ----------------
<S> <C> <C>
Exhibit 4.1 Articles of Incorporation of Registrant(1)
Exhibit 4.2 Bylaws of Registrant(2)
Exhibit 5.1 Opinion of Michael Best & Friedrich LLP...........................
Exhibit 5.2 Internal Revenue Service Determination Letter.....................
Exhibit 24.1 Consent of KPMG LLP...............................................
Exhibit 24.2 Consent of Michael Best & Friedrich LLP (included in Exhibit 5)
- ---------------
</TABLE>
(1) Incorporated by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form 10 for the fiscal year ended December
31, 1998 (the "1998 Form 10") (File No. 0-25983).
(2) Incorporated by reference to Exhibit 3.2 of the 1998 Form 10.
-9-
<PAGE> 1
EXHIBIT 5.1
OPINION OF MICHAEL BEST & FRIEDRICH LLP
<PAGE> 2
August 3, 1999
First Manitowoc Bancorp, Inc.
402 North Eighth Street
Manitowoc, Wisconsin 54221-0010
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
You have requested our opinion as to the legality of 200,000 shares of
common stock, $1.00 par value per share ("Common Stock"), of First Manitowoc
Bancorp, Inc. (the "Company") being registered with the Securities and Exchange
Commission pursuant to a Registration Statement on Form S-8. As your counsel, we
have examined such records and other documents as we deemed necessary for the
purposes of this opinion and considered such questions of law as we believe to
be involved. Based upon such examination and consideration, it is our opinion
that the shares of Common Stock will, when issued and sold in accordance with
the respective provisions of the First National Bank in Manitowoc 401(k) Profit
Sharing Plan, be validly issued, fully paid and nonassessable shares of Common
Stock of the Company.
We give our consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 and the use of our name in connection
therewith.
Very truly yours,
MICHAEL BEST & FRIEDRICH LLP
<PAGE> 1
EXHIBIT 5.2
INTERNAL REVENUE SERVICE
DETERMINATION LETTER
<PAGE> 2
INTERNAL REVENUE SERVICE DEPARTMENT OF TREASURY
District Director
P.O. Box 2508
CINCINNATI, OH 45201
Date: December 19, 1997 Employer Identification Number:
39-1839395
FIRST NATIONAL BANK IN MANITOWOC DLN:
402 N 8TH STREET 17007265352007
MANITOWOC, WI 54220 Person to Contact:
CINDY PERRY
Contact Telephone Number:
(513) 241-5199
Plan Name:
PROFIT SHARING 401K PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some events that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
December 31, 1996.
This determination letter is also applicable for the amendment(s)
adopted on December 5, 1997.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights and features that are currently available to all employee
in the plan's coverage group. For this purpose, the plan's coverage group
consists of those employees treated as currently benefiting for purposes of
demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
Except as otherwise specified this letter may not be relied upon
with respect to whether the plan satisfies
<PAGE> 3
the qualification requirements as amended by the Uruguay Round Agreements Act.
Pub. L. 103-465 and by the Small Business Job Protection Act of 1996 (SBJPA),
Pub. L. 104-108, other than the requirements of Code section 401(a)(26).
This letter considers the amendments required by the Tax Reform Act of
1986, except as otherwise specified in this letter.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
Acting District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide for Employee Benefit Plans
<PAGE> 4
INTERNAL REVENUE SERVICE DEPARTMENT OF TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Date: March 12, 1993 Employer Identification Number:
39-6079818
EMJAY CORPORATION File Folder Number:
4600 NORTH PORT WASHINGTON ROAD 360056375
MILWAUKEE, WI 53212-0000 Person to Contact:
MS. G. LORBER
Contact Telephone Number:
(312) 886-4642
Plan Name:
STANDARDIZED PROFIT SHARING PLAN
Plan Number: 002
Letter Serial Number:
D7360195
Dear Applicant:
The amendment to the form of the plan identified above is acceptable
under sections 401(a) or 403(a) of the Internal Revenue Code. This letter
relates only to the amendment to the form of the plan. It is not a determination
on the acceptability of any other amendment or of the form of the plan as a
whole, or on the effect of other Federal or local statutes.
You must furnish a copy of this letter and the enclosed publication to
each employer who adopts this plan. You must also send a copy of this letter, a
copy of the approved form of the plan, and any approved amendments and related
documents to each key District Director of the Internal Revenue Service in whose
jurisdiction there are adopting employers.
The acceptability of the form of the plan is not a ruling or
determination on whether an employer's plan qualifies under Code section 401(a).
However, an employer who adopts this plan will be considered to have a plan
qualified under Code section 401(a) provided all the terms of the plan are
followed and the eligibility requirements and contribution or benefit provisions
are not more favorable for highly compensated employees than for other
employees.
Except as stated below, the key District Director will not issue a
determination letter for this plan.
This letter does not apply to the form of the plan for purposes of Code
section 401(a)(16) if: (1) an employer ever maintained another qualified plan
for one or more employees who are covered by the plan, other than a specified
paired plan within the meaning of section 4.12 of Rev. Proc. 89-13, 1989-1 C.B.
801; or (2) after December 31, 1985, the employer maintained a welfare benefit
fund described in Code section 419(e), which provides post retirement medical
benefits allocated to separate accounts for key employees as defined in Code
section 419(d)(3).
Please advise those adopting the plan to contact you if they have any
questions about the operation of the plan.
An employer that has adopted a standardized plan may not rely on this
letter with respect to: (1) whether any amendment or series of amendments is
nondiscriminatory in effect; or (2) whether the plan satisfies the
<PAGE> 5
effective availability requirement of Q & A - 2(a)(3) of section 401(a)-4 of the
regulations with respect to any benefit, right or feature; or (3) whether any
provision or amendment granting past service credit has the effect of
discriminating significantly in favor of highly compensated employees, except to
the extent the provision or amendment satisfies the safe harbor in 1.401(a)-5 of
the proposed regulations and is not part of a pattern of amendments that
discriminates in favor of highly compensated employees.
An employer that has adopted a standardized plan as an amendment to a
plan other than a standardized plan may not rely on this letter with respect to
whether a benefit, right or other feature that is prospectively eliminated
satisfies the current availability requirements of Reg. 1.401(a)-4 Q & A-2(a)
(2) (ii).
The employer may request a determination: (1) as to whether the plan,
considered with all related qualified plans and, if appropriate, welfare benefit
funds, satisfies the requirements of Code section 401(a)(16) as to limitations
on benefits and contributions in Code section 415; (2) regarding the
nondiscriminatory effect of grants of past service; and (3) with respect to
whether a prospectively eliminated benefit, right or feature satisfies the
current availability requirements.
If you have any questions on the IRS processing of this case, please
call the above telephone number. If you write, please provide your telephone
number and the most convenient time for us to call in case we need more
information. Whether you call or write, please refer to the Letter Serial Number
and File Folder Number shown in the heading of this letter.
You should keep this letter as a permanent record.
Sincerely yours,
District Director
Enclosure(s)
Publication 1488
<PAGE> 6
INTERNAL REVENUE SERVICE DEPARTMENT OF TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Date: March 12, 1993 Employer Identification Number:
39-6079818
EMJAY CORPORATION File Folder Number:
4600 NORTH PORT WASHINGTON ROAD 360056375
MILWAUKEE, WI 53212-0000 Person to Contact:
MS. G. LORBER
Contact Telephone Number:
(312) 886-4642
Plan Name:
STANDARDIZED 401 K PLAN
Plan Number: 006
Letter Serial Number:
D7360199
Dear Applicant:
The amendment to the form of the plan identified above is acceptable
under sections 401(a) or 403(a) of the Internal Revenue Code. This letter
relates only to the amendment to the form of the plan. It is not a determination
on the acceptability of any other amendment or of the form of the plan as a
whole, or on the effect of other Federal or local statutes.
You must furnish a copy of this letter and the enclosed publication to
each employer who adopts this plan. You must also send a copy of this letter, a
copy of the approved form of the plan, and any approved amendments and related
documents to each key District Director of the Internal Revenue Service in whose
jurisdiction there are adopting employers.
The acceptability of the form of the plan is not a ruling or
determination on whether an employer's plan qualifies under Code section 401(a).
However, an employer who adopts this plan will be considered to have a plan
qualified under Code section 401(a) provided all the terms of the plan are
followed and the eligibility requirements and contribution or benefit provisions
are not more favorable for highly compensated employees than for other
employees.
Except as stated below, the key District Director will not issue a
determination letter for this plan.
This letter does not apply to the form of the plan for purposes of Code
section 401(a)(16) if: (1) an employer ever maintained another qualified plan
for one or more employees who are covered by the plan, other than a specified
paired plan within the meaning of section 4.12 of Rev. Proc. 89-13, 1989-1 C.B.
801; or (2) after December 31, 1985, the employer maintained a welfare benefit
fund described in Code section 419(e), which provides post retirement medical
benefits allocated to separate accounts for key employees as defined in Code
section 419(d)(3).
Please advise those adopting the plan to contact you if they have any
questions about the operation of the plan.
An employer that has adopted a standardized plan may not rely on this
letter with respect to: (1) whether any amendment or series of amendments is
nondiscriminatory in effect; or (2) whether the plan satisfies the
<PAGE> 7
effective availability requirement of Q & A - 2(a)(3) of section 401(a)-4 of the
regulations with respect to any benefit, right or feature; or (3) whether any
provision or amendment granting past service credit has the effect of
discriminating significantly in favor of highly compensated employees, except to
the extent the provision or amendment satisfies the safe harbor in 1.401(a)-5 of
the proposed regulations and is not part of a pattern of amendments that
discriminates in favor of highly compensated employees.
An employer that has adopted a standardized plan as an amendment to a
plan other than a standardized plan may not rely on this letter with respect to
whether a benefit, right or other feature that is prospectively eliminated
satisfies the current availability requirements of Reg. 1.401(a)-4 Q & A-2(a)
(2) (ii).
The employer may request a determination: (1) as to whether the plan,
considered with all related qualified plans and, if appropriate, welfare benefit
funds, satisfies the requirements of Code section 401(a)(16) as to limitations
on benefits and contributions in Code section 415; (2) regarding the
nondiscriminatory effect of grants of past service; and (3) with respect to
whether a prospectively eliminated benefit, right or feature satisfies the
current availability requirements.
If you have any questions on the IRS processing of this case, please
call the above telephone number. If you write, please provide your telephone
number and the most convenient time for us to call in case we need more
information. Whether you call or write, please refer to the Letter Serial Number
and File Folder Number shown in the heading of this letter.
You should keep this letter as a permanent record.
Sincerely yours,
District Director
Enclosure(s)
Publication 1488
<PAGE> 1
EXHIBIT 24.1
CONSENT OF KPMG LLP
<PAGE> 2
Consent of Independent Public Accountants
-----------------------------------------
The Board of Directors
First Manitowoc Bancorp, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of First Manitowoc Bancorp, Inc. of our report dated January 29, 1999,
relating to the consolidated statements of financial condition of First
Manitowoc Bancorp, Inc. and subsidiaries as of December 31, 1998 and 1997, and
the related consolidated statements of income, changes in stockholders' equity
and comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 1998, and all related schedules, which report appears
in the December 31, 1998 annual report on Form 10 of First Manitowoc Bancorp,
Inc.
KPMG LLP
Milwaukee, Wisconsin
August 23, 1999
