<PAGE> 1
As filed with the Securities and Exchange Commission December 13, 1995
Registration No. 33-32788
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________________
FP BANCORP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 6712 33-0018976
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code No.) Identification number)
</TABLE>
613 WEST VALLEY PARKWAY
ESCONDIDO, CALIFORNIA 92025-4929
(619) 741-3312
(Address of Principal Executive Offices and Zip Code)
____________________________________
AMENDED AND RESTATED 1988 STOCK OPTION PLAN
OF ENB HOLDING COMPANY
(full title of the plan)
____________________________________
<TABLE>
<S> <C>
HARVEY L. WILLIAMSON COPY TO:
PRESIDENT/CEO KURT L. KICKLIGHTER/ERICK R. ALTONA, ESQ.
FP BANCORP, INC. HIGGS, FLETCHER & MACK
613 WEST VALLEY PARKWAY 2000 FIRST NATIONAL BANK BUILDING
ESCONDIDO, CALIFORNIA 92025-4929 401 WEST "A" STREET
(619) 741-3312 SAN DIEGO, CALIFORNIA 92101-7908
(619) 236-1551
</TABLE>
(Name, address, including ZIP Code,
and telephone number, including area code,
of agent for service)
______________________________
<PAGE> 2
PROSPECTUS
FP BANCORP, INC.
COMMON STOCK
(Par Value $.001)
_________________
AMENDED AND RESTATED
1988 STOCK OPTION PLAN OF
ENB HOLDING COMPANY
_________________
This Prospectus relates to 250,000 shares of Common Stock offered to employees
of the Company and its subsidiaries who have been or may in the future be
granted options to purchase such shares pursuant to the Amended and Restated
1988 Stock Option Plan of ENB Holding Company, as amended on November 23, 1993
and March 22, 1994 (the "Plan").
- -------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- -------------------------------------------------------------------------------
This Prospectus does not cover resales of the securities acquired hereunder.
However, persons who are not officers or directors of the Company ordinarily
may publicly resell shares acquired hereunder without registration under the
Securities Act of 1933, as amended (the "Act"), in reliance upon Section 4(1)
thereof. Directors of the Company and officers who are affiliates of the
Company may not publicly resell shares acquired hereunder without compliance
with Rule 144 promulgated under the Act or registration under the Act.
An officer or director of the Company who sells shares of the Common Stock of
the Company within six months before or after the purchase of shares under the
Plan or after issuance of options under the Plan may be obligated under Section
16(b) of the Securities Exchange Act of 1934, as amended and the Rules and
Regulations of the Securities and Exchange Commission promulgated thereunder,
to pay to the Company all or a portion of any amount of the sales price
received for the shares sold in excess of the price paid for the shares so
purchased. Officers and directors of the Company are advised to consult their
individual counsel in this regard prior to the purchase or sale of any such
shares.
_______________________________________
The date of this Prospectus is December 12, 1995
_______________________________________
<PAGE> 3
AVAILABLE INFORMATION
FP Bancorp, Inc. (the "Company") is subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
in accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). All such
reports, proxy statements and other information, including the documents
incorporated by reference herein, can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: 75 Park Place, 14th Floor, New York, New York 10007 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60621-2511. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company's predecessor, FP Bancorp, a California corporation formerly
known as ENB Holding Company ("FP Bancorp"), has filed with the Commission a
Registration Statement (the "Registration Statement") under the Securities Act
of 1933 (the "Securities Act") with respect to the securities being offered by
this Prospectus. This Prospectus does not contain all of the information set
forth in the Registration Statement, as permitted by the rules and regulations
of the Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto. Copies of the Registration Statement,
including exhibits, may be obtained from the Commission upon payment of a
prescribed fee, or may be examined without charge at the offices of the
Commission.
ADOPTION OF REGISTRATION STATEMENT
Pursuant to Commission Rule 414, the Company hereby adopts the
Registration Statement as its own registration statement for purposes of the
Securities Act and the Securities Exchange Act of 1934 (the "Exchange Act").
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company or FP Bancorp with the
Commission are hereby incorporated into this Prospectus by reference:
(i) FP Bancorp's Annual Report, as amended, on Form 10-KSB/A for the
year ended December 31, 1994;
(ii) FP Bancorp's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1995;
(iii) The Company's Quarterly Report on Form 10-QSB for the quarters
ended June 30, 1995 and September 30, 1995; and
2
<PAGE> 4
(iv) The description of the Company's Common Stock contained in FP
Bancorp's registration statement on Form S-4 under the Securities Exchange Act
of 1934, Registration No. 33-87388, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered by this
Prospectus have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Prospectus and
to be part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document modifies or replaces such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge a copy of any or all of the
foregoing documents incorporated by reference in the Registration Statement
(other than exhibits to the information incorporated by reference unless such
exhibits are specifically incorporated by reference to the foregoing documents)
upon the written or oral request of any person, including any beneficial owner,
to whom a copy of this Prospectus is delivered. Requests should be directed to
FP Bancorp, Inc., Attention: Secretary, 613 West Valley Parkway, Escondido,
California 92025-4929; (619) 741-3312.
Reference is also made to the most recent Appendix hereto, which is a part
of this Prospectus and which contains information about (1) the names of the
members of the Board of Directors, or the Committee, administering the Plan;
(2) the number of persons eligible to participate in the Plan and the number of
persons participating; and (3) the tax effects of the Plan.
3
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<S> <C>
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 2
THE COMPANY 4
THE PLAN 4
General 5
Administration of the Plan 5
Eligibility 5
Shares Covered by the Plan 6
Exercise Price 6
Options Nontransferable 7
When Options May Be Exercised 7
Payment Upon Exercise of Options 7
Termination of Options 8
Corporate Reorganizations 8
Amendment and Termination of the Plan 9
CERTAIN FEDERAL AND STATE LAWS 9
FEDERAL INCOME TAX CONSEQUENCES 10
EXPERTS 10
LEGAL OPINION 10
</TABLE>
AN APPENDIX TO PROSPECTUS DATED DECEMBER 12, 1995 RELATING TO SHARES OFFERED
UNDER THE AMENDED AND RESTATED 1988 STOCK OPTION PLAN OF ENB HOLDING COMPANY,
AS AMENDED NOVEMBER 23, 1993 AND MARCH 22, 1994 IS ATTACHED HERETO.
THE COMPANY
This Prospectus relates to the shares of Common Stock, $.001 par value
(the "Common Stock"), of FP Bancorp, Inc., 613 West Valley Parkway, Escondido,
California 92025-4929, (619) 741-3312, which may be issued on exercise of
options granted or to be granted under the Amended and Restated 1988 Stock
Option Plan of ENB Holding Company, as amended on November 23, 1993 and March
22, 1994 (the "Plan").
4
<PAGE> 6
THE PLAN
General
The Board of Directors of the Company's predecessor, FP Bancorp, a
California corporation formerly known as ENB Holding Company ("FP Bancorp").
adopted the Plan on January 18, 1988, and the shareholders of FP Bancorp
approved the Plan at their Annual Meeting of June 16, 1988. The Plan was
subsequently amended by FP Bancorp's Board of Directors as of February 22,
1990, November 23, 1993 and March 22, 1994. Effective April 11, 1995, FP
Bancorp was merged with and into the Company and the Company thereupon assumed
all of FP Bancorp's rights and duties under the Plan.
Under the Plan, options may be granted to employees to purchase shares of
the Company's Common Stock. The Plan is designed to enable the Company and its
subsidiaries to attract, retain and motivate eligible persons by providing for
or increasing the proprietary interests of such persons in the Company. The
Plan provides for options which qualify as incentive stock options ("Incentive
Options") under Section 422A of the Internal Revenue Code of 1986, as amended
(the "Code"), as well as options which do not so qualify ("Non-Qualified
Options") (collectively, "Options"). The Plan will terminate on January 17,
1998, unless terminated earlier by the Board.
Administration of the Plan
The Plan is administered by the Company's Board of Directors (the
"Board"). The name and address of each member of the Board is set forth in the
current Appendix. Members of the Board are elected at each annual meeting of
the shareholders and hold office until the next annual meeting. In its
discretion, the Board may appoint a committee (the "Committee") of not less
than three members of the Board. A member of the Committee shall not be
eligible to vote upon or approve the granting of any Option under the Plan to
such member.
The interpretation and construction by the Board of any term or provision
of the Plan or of any option granted under it shall be final. The Board, or by
delegation from the Board, the Committee, may from time to time adopt rules and
regulations for carrying out this Plan and, subject to the provisions of this
Plan, may prescribe the form or forms of the instruments evidencing any option
granted under this Plan.
Subject to the provisions of this Plan, the Board or, by delegation from
the Board, the Committee shall have full and final authority in its discretion
to select the persons to be granted options, to grant such options and to
determine the number of shares to be subject thereto, the exercise prices, the
terms of exercise, expiration dates and other pertinent provisions thereof.
Eligibility
Key employees of the Company, a parent or a subsidiary of the Company are
eligible to receive Options under the Plan, as selected by the Board or the
Committee.
5
<PAGE> 7
The approximate number of persons eligible for participation in the Plan
and the approximate number of persons participating in the Plan are set forth
in the current Appendix.
Shares Covered by the Plan
The maximum number of shares of stock for which Options may be exercised
currently is 250,000 shares of the Common Stock, $.001 par value, of the
Company, subject to the adjustments provided for in the following paragraph.
Shares of stock subject to the unexercised portions of any Options granted
under this Plan which expire or terminate or are canceled may again be subject
to Options under the Plan.
The number and/or kind of shares covered by the Plan is subject to
proportionate adjustment if the outstanding shares of Common Stock are changed
in number or kind by reason of stock splits, stock dividends, corporate
reorganizations, recapitalization, or the like. The number and/or kind of
shares covered by outstanding Options issued under the Plan are also subject to
adjustment upon the occurrence of any such event. Any such adjustment in
outstanding Options shall be made without changing the aggregate exercise price
applicable to the unexercised portions of such Options, but with a
corresponding adjustment in the exercise price per share.
This Prospectus relates to the shares that are subject to outstanding
Options and shares that remain available for future Options under the Plan.
The Plan originally provided for Options with respect to 75,000 shares of FP
Bancorp common stock. As a result of a 2% stock dividend declared in February
1988, a 4% stock dividend declared in January 1989, a 5% stock dividend
declared in January, 1990 and a 10% stock dividend declared in March 1991, the
number of shares available for purchase pursuant to the exercise of Options
granted under the Plan was increased to 90,090. On November 23, 1993 and March
22, 1994, the Board increased the number of shares subject to the Plan to
250,000 and such increase was subsequently approved by FP Bancorp's
shareholders.
There is no limit upon the number of shares which may be granted as
Non-Qualified Options under the Plan to any one consultant or employee, except
that no Option may be granted to any consultant or employee who owns stock
possessing more than ten percent (10%) of the voting power of the Company.
However, the aggregate fair market value of the stock for which Incentive
Options granted to any one employee shall not exceed the maximum amount
currently specified by law, $100,000, with fair market value determined as of
the time each respective option is granted. For purposes of such
determination, all options under the Plan and under all stock option plans of
the Company, its parents and subsidiaries are included if such options may by
their terms first become exercisable during any calendar year after December
31, 1986.
Exercise Price
The exercise price which must be paid for Common Stock upon exercise of
any Option may not be less than one hundred percent (100%) of the fair market
value of the stock on the date the grant of the Option is approved by the Board
or Committee.
6
<PAGE> 8
Options Nontransferable
All Options are nontransferable other than upon the optionee's death by
will or the laws of descent and distribution, may not be pledged or
hypothecated and are exercisable during the optionee's lifetime only by the
optionee.
When Options May Be Exercised
No Option granted under the Plan may be exercised in whole or in part more
than ten (10) years after its date of grant. The exercise or vesting periods
for the Options granted under the Plan are set forth in the individual Option
agreements at the Board's discretion; provided, however, that vesting is
required to occur at the rate of at least twenty percent (20%) per year over a
five (5) year period. Vesting may be accelerated upon the occurrence of
certain events. See "The Plan - Corporate Reorganizations".
Subject to the limitations imposed by the Plan and applicable law, the
Board or Committee determines the time or times and the conditions under which
each Option is exercisable. Options granted under the Plan may become
exercisable in installments if specified in the individual option agreements,
and in that case, the installments are cumulative so that each matured but
unexercised installment remains exercisable until the entire Option expires or
is terminated.
Payment Upon Exercise of Options
Upon exercise of an Option under the Plan, the stock purchased must be
paid for in full. Payment for stock upon exercise of an Option generally must
be in cash, but option agreements under the Plan may allow the optionee to pay
for optioned shares upon exercise of Options wholly or partially in
installments.
All funds received or held by the Company under the Plan will be included
in the general funds of the Company free of any trust or other restriction and
may be used for any corporate purpose. No interest will be paid to any
participant or credited under the Plan.
7
<PAGE> 9
Termination of Options
Each of the Options terminates ten (10) years from its date of grant;
provided, however:
(i) Termination of Employment. Except as set forth in (i), above, if the
optionee's employment with the Company or any of its parents or subsidiaries
terminates for any reason other than death, then only that portion of the
Option exercisable at the time of termination may be exercised for a period not
to exceed thirty (30) days thereafter, but in no case after it expires by its
terms. If termination is by reason of the optionee's retirement (with the
Company's written consent), the period of exercise shall be extended to three
(3) months, but in no case beyond the expiration of the Option in accordance
with its terms. If termination is by reason of the optionee's permanent and
total disability, the period of exercise shall be extended to one (1) year, but
in no case beyond the expiration of the Option in accordance with its terms.
(ii) Death of Optionee. If the optionee dies during the term of the
Option, the portion of the Option exercisable when he died may be exercised for
one year thereafter, but not after it expires by its terms, by the optionee's
legal representatives or by the person to whom the optionee's rights under the
Option pass by will or the laws of descent and distribution.
(iii) Continuity of Employment. An Option shall not be exercisable by the
optionee in any part unless at all times since the date of grant the optionee
has, except for duly granted leave or sick leave not to exceed ninety (90)
days, been in the continuous employ of the Company or a parent or subsidiary
thereof, until the vesting of the portion of the Option as set forth in the
optionee's option agreement.
(iv) California Nonresidents. If so provided in an optionee's option
agreement, an Option may not be exercisable in the event such optionee becomes
a resident of a state other than California.
Corporate Reorganizations
Subject to any required action by the shareholders, in case the Company is
merged or consolidated with another corporation, and if the Company shall be
the surviving corporation in any such event, each outstanding Option, whether
or not then exercisable, shall pertain to and apply to the securities to which
a holder of the number of shares subject to the Option would have been
entitled. Pursuant to such provisions, all of the Options were converted into
options for shares of Common Stock upon the reincorporation of FP Bancorp, a
California corporation formerly known as ENB Holding Company, as a Delaware
corporation effective April 11, 1995.
In case (i) the property or stock of the Company is acquired by another
corporation; (ii) of a separation or liquidation of the Company or (iii) of a
merger or consolidation in which the Company is not the surviving corporation,
such event shall cause each outstanding Option to terminate, provided that an
optionee who possesses an outstanding Option, whether or not then exercisable,
shall, in such event, have the right for ten (10) days immediately prior to the
effective date of such event, to exercise the optionee's Option in whole or in
part.
8
<PAGE> 10
Amendment and Termination of the Plan
The Board has the right to amend, suspend or terminate the Option Plan at
any time; provided, however, that no such action shall affect or in any way
impair the rights of an optionee under any Option theretofore granted under the
Plan without the consent of the optionee or the transferee of the Option; and
provided further that no such action, without approval of the stockholders,
may: (a) increase the total number of shares of stock which may be sold or
transferred pursuant to Options granted under the Plan; (b) change the
designation of class of persons eligible to participate in the Plan; (c)
decrease the minimum Option price specified in the Plan; (d) extend the maximum
term of Options granted thereunder; or (e) extend the term of the Plan.
CERTAIN FEDERAL AND STATE LAWS
Employee Retirement Income Security Act of 1974
The Plan is not subject to the Employee Retirement Income Security Act of
1974 or qualified under Section 401 of the Code. Participants will receive a
copy of the Company's annual report and other communications distributed to all
stockholders generally.
Section 16 Provisions
Granting of Options to officers, directors or 10% stockholders of the
Company could be subject to the provisions of Section 16(b) of the Exchange
Act, under which a purchase of Common Stock within six months before or after
any sale of such stock could result in recovery by the Company of all or a
portion of any amount by which the sale proceeds exceed the purchase price.
Such officers, directors and 10% stock holders are required to file reports of
changes in beneficial ownership under Section 16(a) of the Exchange Act upon
acquisitions of Options, and upon dispositions of Options or shares.
Officers, directors and 10% stockholders should consult counsel prior to the
acquisition or disposition of any shares or any Option.
Resales of Common Stock
Persons who are not affiliates of the Company may sell shares of Common
Stock purchased upon exercise of Options covered by the Registration Statement
of which this Prospectus is a part without compliance with the registration and
prospectus delivery requirements of the Securities Act. Resales of shares of
Common Stock purchased upon exercise of Options by affiliates are restricted
under the provisions of the Securities Act and the rules and regulations of the
Commission thereunder, including Rule 144.
Indemnification
In 1988, the Board of Directors and shareholders of FP Bancorp approved an
amendment to FP Bancorp's articles of incorporation that substantially limited
the personal liability of directors and officers resulting from certain
breaches of such directors' or officers' fiduciary duty, as permitted by
California legislation enacted in 1987. The primary
9
<PAGE> 11
purpose of the amendment was to enhance the FP Bancorp's ability to attract and
retain qualified officers and members of the Board of Directors and to
encourage directors and officers to continue to make independent and
entrepreneurial decisions in good faith on behalf of FP Bancorp. The amendment
eliminated the liability of directors and officers to FP Bancorp and its
shareholders for monetary damages for certain breaches of the director's or
officer's fiduciary duty, but it does not otherwise affect such duty. While FP
Bancorp believed that the amendment would have a positive effect, the amendment
could have impaired the ability of FP Bancorp or its shareholders to bring
certain types of legal actions against the FP Bancorp's directors and officers.
FP Bancorp's shareholders also amended FP Bancorp's Bylaws to broaden the
range of indemnification allowed directors and officers, as permitted under
California law.
Indemnification of Company directors and officers is governed by the
applicable provisions of its Certificate of Incorporation (the "Certificate")
and By-laws and by Delaware law. California and Delaware have similar laws
regarding indemnification of directors, officers, employees and other agents
(collectively, "Indemnitees"). However, the Certificate is potentially more
expansive than FP Bancorp's articles of incorporation in that the Certificate
incorporates future amendments to Delaware law. Further, while FP Bancorp's
articles of incorporation permitted FP Bancorp to indemnify its Indemnitees to
the fullest extent allowed under California law, the Certificate requires the
Company to indemnify its Indemnitees to the fullest extent allowed under
Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the Company's Certificate or By-laws, the Company has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
FEDERAL INCOME TAX CONSEQUENCES
A summary of federal income tax effects of the Options is set forth in the
current Appendix to this Prospectus.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1994 and 1993 and for each of the years in the three-year period ended December
31, 1994 incorporated by reference in this Prospectus have been incorporated
herein in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The report of
KPMG Peat Marwick LLP refers to a change in accounting for investments during
1994 and a change in accounting for income taxes during 1993.
LEGAL OPINION
The legality of the securities being offered hereby has been passed upon
by Higgs, Fletcher & Mack, corporate counsel for the Company.
10
<PAGE> 12
FP BANCORP, INC.
APPENDIX DATED DECEMBER 12, 1995
TO PROSPECTUS DATED DECEMBER 12, 1995
RELATING TO SHARES OFFERED UNDER THE AMENDED AND RESTATED
1988 STOCK OPTION PLAN OF ENB HOLDING COMPANY
_______________________________
The principal executive offices and corporate headquarters of FP Bancorp,
Inc. (the "Company") are located at 613 West Valley Parkway, Escondido,
California 92025-4929. (Telephone (619) 741-3312).
ADMINISTRATION OF THE PLAN
The names and addresses of the Board of Directors of the Company are as
follows:
<TABLE>
<CAPTION>
Name Business Address
- ---- ----------------
<S> <C>
Mark N. Baker P.O. Box 2487
Escondido, CA 92025
Earle W. Frey, Jr. P.O. Box 271220
Escondido, CA 92027
Robert W. Klemme 3400 Central Avenue, #325
Riverside, CA 92506
Joseph J. Kuebler Kuebler & Thomas
43500 Ridge Park Drive, Suite 104
Temecula, CA 92590
Randall C. Luce 3400 Central Avenue, #325
Riverside, CA 92506
Larry R. Markham 41750 Winchester Road, Suite N
Temecula, CA 92590
Richard W. McBride Southern Contracting Co.
599 North Twin Oaks Valley Road
San Marcos, CA 92060
Richard S. Spanjian 7315 El Fuerte Street
Carlsbad, CA 92009
</TABLE>
1
<PAGE> 13
<TABLE>
<S> <C>
Robert M. Spanjian 2141 Palomar Airport Road, Suite 130
Carlsbad, CA 92009
Richard B. Thomas 3400 Central Avenue, #325
Riverside, CA 92506
Michael W. Wexler Pine Tree Lumber Company, Inc.
707 North Andreason
Escondido, CA 92025
Harvey L. Williamson FP Bancorp, Inc.
613 W. Valley Parkway
Escondido, CA 92025-4929
</TABLE>
NUMBER OF PERSONS ELIGIBLE TO PARTICIPATE
Approximately 15 persons are eligible to participate in the Plan.
Approximately 15 persons are currently participating in the Plan.
SECURITIES SUBJECT TO THE PLAN
As of October 1, 1995, options covering 155,775 of the 250,000 shares of
the Company's Common Stock available under the Plan have been granted to
eligible persons. As of such date, 939 shares of Common Stock had been issued
under the Plan, and 93,306 shares were reserved and available for additional
grants under the Plan. The following table sets forth the number of shares,
option prices and expiration dates with respect to the options outstanding
under the Plan as of October 1, 1995.
<TABLE>
<CAPTION>
Year Number Option Price Year of
of Grant of Shares Per Share Expiration
- -------- --------- --------- ----------
<S> <C> <C> <C>
1988 25,826 $14.78 1998
1988 none -- --
1989 none -- --
1990 7,975 19.09 1995
1991 1,650 17.73 1996
1992 12,500 11.00 1996
1993 104,336 6.00 2003
1994 12,205(1) 6.00(1) 2004
1995 (through
October 1) none -- --
</TABLE>
- -------------
(1) Does not include repricing of all outstanding options to $5.15 per share
during 1994.
2
<PAGE> 14
The foregoing information will be updated annually by information in the
Company's Annual Report to Shareholders which is hereby incorporated herein by
this reference.
FEDERAL INCOME TAX CONSEQUENCES
Options which have been and may be granted under the Plan in the future
may be intended either to qualify as incentive stock options within the meaning
of Section 422 ("Code Section 422") of the Code or to be non-qualified options.
The Plan is not qualified under Section 401(a) of the Code. The following is
a general summary of the material federal income tax consequences of incentive
stock options and non-qualified options. This summary is not intended to
describe all federal income tax consequences pertaining to administration of
the Plan, Optionees or the Company, nor does it include a description of any
state or local tax consequence which may result.
Tax Consequences to Optionees - Incentive Stock Options
The incentive stock options to be granted under the Plan have been or will
be issued in accordance with the federal income tax rules regarding incentive
stock options generally which are set forth in Code Section 422. The term
"incentive stock option" means an option granted to an individual for any
reason connected with his or her employment by an employer or a parent or
subsidiary corporation of the employer. As such, only "employees" are eligible
to participate. Employees must be employed on a full-time basis and,
accordingly, directors of an employer who are not also officers or otherwise
employed by the entity are ineligible to participate.
Options which qualify as incentive stock options are entitled to special
tax treatment. If shares purchased pursuant to the exercise of such an option
are not disposed of by the Optionee within two years from the date of granting
of the option or within one year after the issue of the shares to the Optionee
upon exercise of the incentive option, whichever is longer, then (i) no income
will be recognized to the Optionee upon the granting or exercise of the option;
(ii) any gain or loss will be recognized to the Optionee only upon ultimate
disposition of the shares as a long term capital gain or loss; (iii) the
Optionee's basis in the shares purchased will be equal to the amount of cash
paid for such shares; and (iv) the Company will not be entitled to a federal
income tax deduction in connection with the exercise of the option. Incentive
stock options exercised more than three months after termination of employment,
other than by reason of death, are treated as non-qualified options.
Options intended to qualify for incentive stock option treatment will not
so qualify under certain circumstances. Options shall not receive incentive
stock option treatment to the extent that in any calendar year, the fair market
value of incentive stock options of an Optionee that first become exercisable
in that year exceeds $100,000. In making this calculation, fair market value
is determined as of the date of grant of the options, and all options intended
to receive incentive stock option treatment under the Plan or any other plan of
the Company are aggregated together for purposes of making the calculation.
3
<PAGE> 15
If the Optionee disposes of the shares acquired by exercise of an
incentive stock option before the expiration of the holding period described
above, the Optionee must treat as ordinary income in the year of that
disposition an amount equal to the lesser of (1) the fair market value of the
stock on the date of exercise over the option price of the stock or (2) the
amount realized on disposition over the adjusted basis of the stock. In
addition, the Company will be entitled to a deduction equal to the amount the
employee is required to treat as ordinary income.
If the exercise price of an option is paid by surrender of previously
owned shares, the basis of the shares received in replacement of the previously
owned shares of Common Stock is generally carried over to the new issued
shares. If, however, the option is an incentive stock option, the Optionee
will recognize gain if the shares surrendered were acquired through the
exercise of an incentive stock option and have not been held for the applicable
holding period. This gain will be added to the basis of the shares received in
replacement of the previously owned shares.
In order to receive favorable tax treatment, an Optionee must also be
employed for the entire term from the date of the granting of the incentive
stock option until three (3) months before the date of exercise, whether or not
the option is exercised in full or in part. This three (3) month period is
extended to twelve (12) months in cases where employment ceases due to the
permanent and total disability of the Optionee, i.e., defined to mean that he
or she is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to continue for a period
of not less than twelve (12) months. Where death of an Optionee occurs during
the term of the employment, the employment condition is waived, as is the
holding period requirement, relative to long-term capital gain treatment. The
estate representative of the deceased Optionee may exercise the option in whole
or in part without regard to the holding requirements.
Under the general tax rules, an incentive stock option, by its terms, must
be exercisable within ten (10) years from the date of grant in order to comply
with the tax rules. Under the terms of the Plan, options may not be granted
for option terms exceeding ten (10) years. In addition, an option may not be
granted to an individual who owns stock possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the employer
corporation or its parent or subsidiary corporation.
Tax Consequences to Optionees - Non-qualified Options
Under present regulations the value of a non-qualified option (one not
meeting the requirements of Code Section 422) is not currently taxable to the
Optionee, and no deduction is afforded the granting corporation unless the
option has a readily ascertainable fair market value and is not subject to a
substantial risk of forfeiture. Ordinarily, the value of a non-qualified
option is not readily ascertainable unless the option is actively traded on an
established market. In other cases an Optionee must show that the option is
freely transferable and immediately exercisable (as well as meeting certain
other conditions) in order to establish a readily ascertainable value. Also,
an employee who receives a stock option which is subject to
4
<PAGE> 16
restrictions which create a substantial risk of forfeiture (within the meaning
of Section 83 of the Code) will not normally recognize any income in the year
in which the option is granted.
When a non-qualified stock option granted pursuant to the Plan is
exercised, the employee will realize ordinary income measured by the difference
between the aggregate purchase price of the shares of Common Stock as to which
the option is exercised and the aggregate fair market value of shares of the
Common Stock on the exercise date, and the Company will be entitled to a
deduction equal to the amount the employee is required to treat as ordinary
income. Officers and directors of the Company generally are taxed when the
restrictions on sale under section 16(b) of the Securities Exchange Act of 1934
expire rather than on the date of exercise. The Company receives a
corresponding deduction in the year in which income is recognized by the
Optionee.
The Optionee's basis in the shares acquired will be equal to the option
price plus the amount of ordinary income upon which he is taxed. Upon
subsequent disposition of the shares, the Optionee will realize capital gain or
loss, long-term or short-term, depending upon the length of time the shares
have been held since the option was exercised.
If an Optionee exercises a non-qualified option by delivering Common Stock
as part of all of the payment for acquiring the shares, no gain or loss will be
recognized with respect to the shares delivered to the Company, and the
Optionee will be taxed at ordinary income rates on an amount equal to the
excess of the fair market value of the shares the Optionee is entitled to
receive on the date of exercise over the option price. The Optionee's basis in
the surrendered shares, and the basis in the additional shares obtained by the
exercise of the option will be the sum of the amount of compensation realized
and any cash paid, apportioned pro rata among those additional shares. The
Optionee's holding period in the shares received in exchange for the shares
surrendered, and the holding period for the additional shares obtained by the
exercise of the option will be based on the date of exercise.
Tax Consequences to the Company
No deduction is permitted the Company at the time of an incentive stock
option grant, nor at the exercise or disposition of the stock when received by
Optionee. However, in instances where an Optionee realizes ordinary income
from the exercise of an incentive stock option or an exercise of a
non-qualified option, the Company is entitled to a deduction equal to the
amount of the ordinary income realized. The deduction would be charged against
the Company's earnings and profits. Thus, in cases where an Optionee disposes
of stock, other than during insolvency proceedings, within two (2) years after
the date the option is granted or within one (1) year after receiving the stock
upon exercise of the option, whether in whole or in part, the Optionee will
realize ordinary income in the taxable year of the disposition as to any gain
up to the amount of the fair market value of the stock on the date the option
was exercised and the Company may expense a like amount as compensation paid to
the Optionee.
5
<PAGE> 17
Tax Consequences Concerning Plan Administration
The Code prevents the "pyramiding" of stock acquired through the exercise
of incentive stock options. In short, the anti-pyramiding rules prevent the
use of stock received from the earlier exercise of an incentive stock option to
be exchanged in payment for stock to be received upon the exercise of the
subsequent incentive stock options, unless the transferred option stock
satisfies, at the time of the exchange, both the two (2) year and the one (1)
year holding period requirements. If not, the transfer of the earlier acquired
shares will be taxable under the ordinary rules for disqualifying incentive
stock option dispositions.
Tax Rates
Under the Internal Revenue Code of 1986, as amended through the Revenue
Reconciliation Act of 1993, (i) the maximum individual income rate is
thirty-nine and six tenths percent (39.6%); (ii) the maximum income tax rate
applicable to any long-term capital gain is twenty-eight percent (28%); (iii)
the deductibility of investment interest is substantially limited; and (iv) the
alternative minimum tax rate is twenty-six percent (26%) of the alternative
minimum taxable income up to $175,000 ($87,500 for married individuals filing
separate returns) and twenty-eight percent (28%) of any excess. Optionees are
advised to consult their personal tax advisors with respect to the tax effects
of their exercise of any options and the disposition of any shares acquired in
light of their personal facts and circumstances.
Tax Preferences
Under the Code, the amount by which the fair market value of the shares
received on exercise of an Incentive Option exceeds the exercise price of such
shares is an item of "tax preference" and will be included in the calculation
of the "alternative minimum tax" imposed on individual taxpayers. The
alternative minimum tax is equal to the amount by which twenty-four percent
(24%) of the alternative minimum taxable income (reduced by certain exemption
amounts ranging up to $45,000 for a joint return) exceeds the regular tax for
the taxable year. The exemption amounts are subject to a phase out, to the
extent that the alternative minimum taxable income exceeds certain amounts
ranging from $75,000 to $150,000, depending on the marital status of the
taxpayer.
Interest Deduction
The federal tax deductibility of interest paid on money borrowed for
investment purposes is limited to the taxpayer's net investment income for the
year. This limitation affects interest paid on money borrowed to purchase
shares on exercise of stock options.
Excise Tax On Excess Parachute Payments
The code imposes an excise tax of twenty percent (20%) of any "excess
parachute payments" received by any employee. An employee generally will be
deemed to have received a "parachute payment" if he receives payments in the
nature of compensation which (1) are contingent on a change in the ownership or
control of the employer, and (2) exceed in the aggregate three times the "base
amount." The "base amount" generally is the average of the employee's annual
compensation for the five (5) years prior to the change in ownership or
6
<PAGE> 18
control. "Excess parachute payment" is defined as the excess of such payments
over the base amount.
Under the Plan, outstanding options which are not yet exercisable may
become exercisable in the event the Company is acquired, merges or liquidates.
See "The Plan - Corporate Reorganizations." In such event, any difference
between the fair market value and the exercise price of any shares issuable in
respect of such options may be characterized as parachute payments if the sum
of such amounts and any other such contingent payments received by the employee
exceeds three times such employee's base amount. As a result, such employee
could be subject to the twenty-percent (20%) excise tax on any resulting excess
parachute payments.
Miscellaneous
The preceding discussion is based on federal tax laws and regulations as
in effect on the date of this Appendix and does not purport to be a complete
description of the federal income tax aspects of stock options. No information
is provided herein with respect to estate, inheritance, state or local tax
laws, although there may be certain tax consequences upon the receipt or
exercise of an option or the disposition of the acquired shares under those
laws. Optionees, therefore, are advised to consult their personal tax advisors
with regard to all possible consequences arising from the granting or exercise
of a stock option, and the disposition of the acquired shares.
7
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Item 601 of
Regulation S-B
Exhibit Reference
Number Description of Exhibit
----------------- ----------------------
<S> <C>
4.1* Amended and Restated 1988 Stock Option Plan of
ENB Holding Company, as amended on
November 23, 1993 and March 22, 1994
4.2* Form of Incentive Stock Option Agreement
5 Opinion of Higgs, Fletcher & Mack as to the
legality of securities being registered.
24.1 Consent of Higgs, Fletcher & Mack (included in
Exhibit 5).
24.2 Consent of KPMG Peat Marwick, LLP
25 Powers of Attorney (included in signature page)
</TABLE>
* previously filed as an exhibit to this Registration Statement
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) 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;
(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.
II-1
<PAGE> 20
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 Post Effective
Amendment No. 3 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Escondido, State of
California, on the 12th day of December, 1995.
Date: December 12, 1995 FP BANCORP, INC.
(Registrant)
By: /s/ HARVEY L. WILLIAMSON
-----------------------------------------
Harvey L. Williamson, President
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Harvey L. Williamson and Michael J. Perdue, or
either of them, his attorney-in-fact, each with power of substitution for him
in any and all capacities, to sign any amendments to this Registration
Statement and to file the same, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
ratifies and confirms all that each said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ MARK N. BAKER
_____________________________ Director December 12, 1995
Mark N. Baker
/s/ EARLE W. FREY, JR.
_____________________________ Director December 12, 1995
Earle W. Frey, Jr.
/s/ ROBERT W. KLEMME
_____________________________ Director December 12, 1995
Robert W. Klemme
/s/ JOSEPH J. KUEBLER
_____________________________ Director December 12, 1995
Joseph J. Kuebler
/s/ RANDALL C. LUCE
_____________________________ Director December 12, 1995
Randall C. Luce
</TABLE>
II-2
<PAGE> 21
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/S/ LARRY R. MARKHAM Director December 12, 1995
- -----------------------------
Larry R. Markham
/s/ RICHARD W. MCBRIDE Director December 12, 1995
- -----------------------------
Richard W. McBride
/s/ RICHARD S. SPANJIAN Director December 12, 1995
- -----------------------------
Richard S. Spanjian
/s/ ROBERT M. SPANJIAN Director December 12, 1995
- -----------------------------
Robert M. Spanjian
/s/ RICHARD B. THOMAS Director December 12, 1995
- -----------------------------
Richard B. Thomas
/s/ MICHAEL W. WEXLER Director December 12, 1995
- -----------------------------
Michael W. Wexler
/s/ HARVEY L. WILLIAMSON Director, Chief December 12, 1995
- ----------------------------- Executive Officer
Harvey L. Williamson (Principal Executive Officer)
/s/ MICHAEL J. PERDUE Chief Financial Officer December 12, 1995
- ----------------------------- and Executive Vice
Michael J. Perdue President (principal financial
officer and principal
accounting officer)
/s/ HARVEY L. WILLIAMSON
- -----------------------------
Harvey L. Williamson
Attorney-in-fact
</TABLE>
II-3
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C>
4.1* Amended and Restated 1988 Stock Option Plan of
ENB Holding Company, as amended on
November 23, 1993 and November 22, 1994
4.2* Form of Incentive Stock Option Agreement
5 Opinion of Higgs, Fletcher & Mack as to the
legality of securities being registered.
23.1 Consent of Higgs, Fletcher & Mack (included in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (included in signature page)
</TABLE>
* previously filed as an exhibit to this Registration Statement
<PAGE> 1
EXHIBIT 5
[LETTERHEAD]
December 13, 1995
FP Bancorp, Inc.
613 West Valley Parkway
Escondido, CA 92025
Re: Post-Effective Amendment No. 3 to Registration Statement on Form S-8
File No. 33-32788
Filed December 13, 1995 (the "Amendment")
Gentlemen:
We have acted as special counsel for FP Bancorp, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement relating to the
registration under the Securities Act of 1933 of the Company's proposed
granting of incentive and non-incentive options to its employees and employees
of its subsidiary (the "Options") for up to 250,000 shares of Common Stock,
$.001 par value (the "Shares") pursuant to the Amended and Restated 1988 Stock
Option Plan of ENB Holding Company (the "Plan").
In so acting, we have examined a copy of the Certificate of Incorporation of
the Company, as amended, a copy of the Bylaws of the Company, as amended, a
copy of the Plan, as amended, resolutions adopted by the Board of Directors of
the Company and such other records and documents as we have deemed relevant and
necessary for the opinions hereinafter expressed. In such examination, we
have assumed the genuineness of all signatures and of all documents submitted to
us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, and the
Options, have been duly and validly authorized and, upon issuance of the Shares,
and assuming exercise of the Options and in exchange for payment therefor,
both as described in the Amendment, the Shares will be legally issued and
outstanding, fully paid and non-assessable.
We consent to being named in the Amendment and in the related Prospectus under
the heading "Legal Matters," and further consent to your filing this legal
opinion as an exhibit to the Amendment.
Very truly yours,
HIGGS, FLETCHER & MACK
<PAGE> 1
EXHIBIT 23.2
[LETTERHEAD]
The Board of Directors
FP Bancorp, Inc.:
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus.
Our report, dated February 9, 1995, relating to the consolidated balance
sheets of FP Bancorp, Inc. (the Bank) as of December 31, 1994 and 1993, and the
related consolidated statements of operations, shareholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1994,
contains an explanatory paragraph relating to changes in the Bank's methods of
accounting for investments and income taxes. As discussed in Note 1 to the
consolidated financial statements, the Bank changed its method of accounting
for certain investments in 1994 to adopt the provisions of Financial Accounting
Standards Board's (FASB's) Statement of Financial Accounting Standards (SFAS)
No. 115, "Accounting for Certain Investments in Debt and Equity Securities." As
discussed in Notes 1 and 10 to the consolidated financial statements, the Bank
changed its method of accounting for income taxes in 1993 to adopt the
provisions of the FASB's No. 109, "Accounting for Income Taxes."
KPMG PEAT MARWICK LLP
San Diego, California
December 6, 1995
