As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 33- ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIDELITY BANCORP, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registration As Specified In its Charter)
Pennsylvania 25-1705405
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(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
1009 Perry Highway
Pittsburgh, PA 15237
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(Address of principal executive offices) (Zip Code)
FIDELITY BANCORP, INC. 1997 EMPLOYEE STOCK COMPENSATION PROGRAM
(Full title of Plan)
Copies To:
William L. Windisch Charles B. Jarrett, Jr., Esq.
FIDELITY BANCORP, INC. PLOWMAN, SPIEGEL & LEWIS, P.C.
1009 Perry Highway 310 Grant Street
Pittsburgh, Pennsylvania 15237 Suite 230 Grant Building
Pittsburgh, Pennsylvania 15219
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title Maximum Maximum
of Each Class Amount Offering Aggregate Amount of
of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
- ---------------- ------------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock
$0.01 Par Value 155,000 shares $29.25 $4,533,750 $1,337.46
</TABLE>
<PAGE>
(1) Based on the maximum number of shares of Fidelity Bancorp, Inc. common
stock, par value $0.01 per share ("Common Stock") authorized for
issuance under the Plan set forth above. There are also registered
hereby such indeterminate number of shares of Common Stock as may
become issuable by reason of the anti-dilution provisions of this plan.
(2) Estimated pursuant to Rule 457(c) and (h)(1) solely for the purpose of
calculating the amount of the registration fee based upon the average
of the high and low prices of the Common Stock on the National
Association of Securities Dealers Automated Quotation National Market
System on March 4, 1998, with respect to the 155,000 shares of Common
Stock issuable under the plan.
Page 2 of Sequentially Numbered Pages
Index to Exhibits found on Page 10
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TO PARTICIPANTS IN THE FIDELITY BANCORP, INC. 1997 EMPLOYEE
STOCK COMPENSATION PROGRAM
Fidelity Bancorp, Inc. ("Company") has filed a registration statement
concerning its shares of common stock, $0.01 par value ("Common Stock") that
may, from time to time, be issued pursuant to the Company's 1997 Employee Stock
Compensation Plan("Plan"). The Prospectus deemed to form a part of the
registration statement consists of certain documents and explanatory memoranda
regarding the plans. Also deemed to comprise part of the Prospectus, are the
following documents, each of which is specifically incorporated by reference
into the registration statement and each of which is on file with the United
States Securities and Exchange Commission ("SEC") (Periodic Report File No.
0-22288):
(a) the Company's annual report on Form 10-K SB for the year ended
September 30, 1997;
(b) the Company's quarterly report on Form 10-QSB for the quarter
ended December 31,1997; and
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-B, including
Exhibits thereto, filed on August 19, 1993.
All documents filed with the SEC by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
of the Prospectus and prior to the termination of the offering made hereby shall
be deemed to be incorporated by reference in the Prospectus and to be a part
thereof 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
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or supersede, to constitute a part of the
Prospectus.
The Company will provide without charge to each participant in these
plans who requests, a copy of any or all of the documents mentioned above as
well as all documentation relating to the plans required to be delivered to
participants pursuant to the rules adopted under the Securities Act of 1933.
Requests for such copies should be addressed in writing to:
Richard G. Spencer
Vice President and Treasurer
FIDELITY BANCORP, INC.
1009 Perry Highway
Pittsburgh, Pennsylvania 15237
(412) 367-3300
March 3, 1998
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference in this registration
statement the following documents filed by the Company with the Commission:
(a) Annual report on Form 10-K SB for the year ended
September 30, 1997 (Periodic Report File No. 22288);
(b) The Company's quarterly reports on Form 10-Q for the
quarter ended December 31, 1997 (Periodic Report File
No. 0-17416); and
(c) The description of the Company's Common Stock
contained int he Company's Registration Statement on
Form 8-B, including Exhibits thereto, filed on August
19, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, and prior to the termination of the offering made
hereby shall be deemed to be incorporated by reference in this registration
statement and to be a 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 which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Information Required in Section 10(a) Prospectus
The document(s) containing the information specified in Items 1 and 2
of Part 1 of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to Part I of Form S- 8,
are not filed with the Securities and Exchange Commission as part of this
registration statement.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
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Item 6. Indemnification of Directors and Officers
The general corporate law of the commonwealth of Pennsylvania, as
applicable to the Company, together with the Company's Bylaws, provides the
Company's officers and directors with a broad range of limitation from liability
and indemnification for actions and inactions in connection with the performance
of their duties. Aside from matters involving criminal statutes or tax laws,
directors are not personally liable for monetary damages for any action or
inaction taken unless the director has breached or failed to perform his or her
duties of office and such breach or failure constitutes self-dealing, willful
misconduct or recklessness. The Company's officers and directors are entitled to
be indemnified if they are named as a party or threatened to be named as a party
to any type of proceeding as a result of actions or inactions taken while in the
course of their association with the Company provided that such action or
inaction was in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company. Officers and directors of the
company will be presumed to be entitled to this indemnification absent breaches
of fiduciary duty, lack of good faith or self-dealing and will be entitled to be
indemnified unless their conduct is determined by a court to have constituted
willful misconduct or recklessness.
Specifically, Subchapter D of Chapter 17 of the Pennsylvania Business
Corporation Law of 1988, as amended (the "BCL"), (15 Pa. C.S.A. ss.ss.1741-1750)
provides that a business corporation shall have the power under certain
circumstances to indemnify directors, officers, employees and agents against
certain expenses incurred by them in connection with any threatened, pending or
completed action, suite or proceeding.
Section 1721 of the BCL (relating to the Board of Directors) declares
that unless otherwise provide by statute or in a by-law adopted by the
shareholders, all powers enumerated in Section 1502 (relating to general powers)
and elsewhere in the BCL or otherwise vested by law in a business corporation
shall be exercised by or under the authority of, and the business and affairs of
every business corporation shall be managed under the direction of, a board of
directors. If any such provision is made in the by-laws, the powers and duties
conferred or imposed upon the board of directors under the BCL shall be
exercised or performed to such extent and by such person or persons as shall be
proved in the by-laws.
Section 1712 of the BCL provides that a director shall stand in a
fiduciary relation to the corporation and shall perform his duties as a
director, including his duties as a member of any committee of the board upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interest of the corporation and with such care, including reasonable
inquiry, skill and diligence, as a person of ordinary prudence would use under
similar circumstances. In performing his duties, a director shall be entitled to
rely in good faith on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by any of the following:
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(1) one or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the matters
presented;
(2) counsel, public accountant or other persons as to matters which the
director reasonably believes to be within the professional or expert competence
of such person; or
(3) a committee of the board upon which he does not serve, duly
designated in accordance with law, as to matters within its designated
authority, which committee the director reasonably believed to merit confidence.
A director shall not be considered to be acting in good faith, if he
has knowledge concerning the matter in question that would cause his reliance to
be unwarranted.
Similar provisions in Section 1712(c) apply to officers of a
corporation.
Section 1716 also states that in discharging the duties of their
respective positions, the board of directors, committees of the board and
individual director may, in considering the best interest of the corporation,
consider the effects of any action upon employees, upon suppliers and customers
of the corporation and upon communities in which offices or other establishments
of the corporation are located, and all other pertinent factors. The
consideration of those factors shall not constitute a violation of Section 1712.
In addition, absent breach of fiduciary duty, lack of good faith or
self-dealing, actions taken as a director or any failure to take any action
shall be presumed to be in the best interests of the corporation.
Moreover, Section 1713 addresses the personal liability of directors
and states that if a by-law adopted by the shareholders so provides, a director
shall not be personally liable, as such, for monetary damages for any action
taken, or any failure to take any action, unless:
(1) the director has breached or failed to perform the duties of his
office under this section; and
(2) the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
The provisions discussed above shall not apply to:
(1) the responsibility or liability of a director pursuant to any
criminal statute; or
(2) the liability of a director for the payment of taxes pursuant to
local, state or federal law.
Finally, Section 1714 states that a director of a corporation who is
present at a meeting of its board of directors, or of a committee of the
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board, at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his dissent is entered in the minutes
of the meeting or unless he files his written dissent to the action with the
secretary of the meeting before the adjournment thereof or transmits the dissent
in writing to the secretary of the corporation immediately after the adjournment
of the meeting. The right to dissent shall not apply to a director who voted in
favor of the action. Nothing shall bar a director from asserting that minutes of
the meeting incorrectly omitted his dissent if, promptly upon receipt of a copy
of such minutes, he notified the secretary, in writing, of the asserted omission
or inaccuracy.
Section 1741 of the BCL (relating to third party actions) provides that
unless otherwise restricted in its by-laws, a business corporation shall have
the power to 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 proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that such person
is or was a representative of the corporation, or is or was serving at the
request of the corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with the action or proceeding if such person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interest of the corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action or proceeding by judgment, order, settlement or conviction or upon a plea
of nolo contendere or its equivalent shall not of itself create a presumption
that the person did not act in good faith and in a manner that he reasonably
believed to be in, or not opposed to, the best interest of the corporation, and
with respect to any criminal proceeding, had reasonable cause to believe that
his conduct was not unlawful.
Section 1742 of the BCL (relating to derivative actions) provides that
unless otherwise restricted in its by-laws, a business corporation shall have
the power to indemnify any person who was or is a party, or is threatened to be
made a party, to any threatened, pending or completed action by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was a representative to the corporation, or is or was serving
at the request of the corporation as a representative of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) actual
and reasonably incurred by such person in connection with the defense or
settlement of the action if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interest of the
corporation. Indemnification shall not be made under this section in respect of
any claim, issue or matter as to which such person has been adjudged to be
liable to the corporation unless, and only to the extent that, the court of
common pleas of the judicial district embracing the county in which the
registered office of the corporation is located or the court in which such
action was brought determines upon application that,
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despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court of common pleas or such other court shall deem proper.
Section 1743 of the BCL (relating to mandatory indemnification)
provides that to the extent that a representative of the business corporation
has been successful on the merits or otherwise in defense of any action or
proceeding referred to in Section 1741 (relating to third party actions) or 1742
(relating to derivative actions), or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
Section 1744 of the BCL (relating to procedure for effecting
indemnification) provides that, unless ordered by a court, any indemnification
under Section 1741 (relating to third party actions) or 1742 (relating to
derivative actions) shall be made by the business corporation only as authorized
in the specific case upon a determination that indemnification of the
representative is proper in the circumstances because such person has met the
applicable standard of conduct set forth in those sections. The determination
shall be made:
(1) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to the action or proceeding;
(2) if such quorum is not obtainable, or, if obtainable and a majority
vote of a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(3) by the shareholders.
Section 1745 of the BCL (relating to advancing expenses) provides that
expenses (including attorneys' fees) incurred in defending any action or
proceeding refereed to above may be paid by the business corporation in advance
of the final disposition of the action or proceeding upon receipt of any
undertaking by or on behalf of the representative to repay such amount if it is
ultimately determined that such person is not entitled to be indemnified by the
corporation as authorized by the BCL or otherwise.
Section 1746 of the BCL (relating to supplementary coverage) provides
that the indemnification and advancement of expenses provided by or granted
pursuant to the other sections of the BCL shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any other by-law, agreement, vote of shareholders
or disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Section 1746 of the BCL also provides that indemnification refereed to
above shall not be made in any case where the act or failure to act giving
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rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Section 1746 further declares that indemnification under any by-law,
agreement, vote of shareholders or directors or otherwise, may be granted for
any action taken or any failure to take any action whether or not the
corporation would have the power to indemnify the person under any other
provision of law except as provided in this section and whether or not the
indemnified liability arises or arose from any threatened, pending or completed
action by or in the right of the corporation. Such indemnification is declared
to be consistent with the public policy of the Commonwealth of Pennsylvania.
Section 1747 of the BCL (relating to the power to purchase insurance)
provides that unless otherwise restricted in its by-laws, a business corporation
shall have power to purchase and maintain insurance on behalf of any person who
is or was a representative of the corporation or is or was serving at the
request of the corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership,joint venture,trust or
other enterprise against any liability asserted against him and insured by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against that liability under
the provisions of the BCL. Such insurance is declared to be consistent with the
public policy of the Commonwealth of Pennsylvania.
Section 1750 of the BCL (relating to duration and extent of coverage)
declares that the indemnification and advancement of expenses provided by, or
granted pursuant to, the BCL shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a representative of the
corporation and shall inure to the benefit of the heirs and personal
representative of that person.
Article 9 of its Articles of Incorporation provides that the Company
shall indemnify any director or officer of the Company who was or is a party or
is threatened to made a party to any threatened, pending or completed action,
suit, appeal, or other proceeding of any nature,whether civil, criminal,
administrative or investigative, whether formal or informal, and whether brought
by or in the right of the Company, a class of its shareholders or otherwise, by
reason of the fact that such person (i) is or was a director, officer, employee
or agent of the Company, or (ii) is or was serving at the request of the Company
as a director, officer, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise against all expenses (including attorneys' fees), judgments, fines,
damages, punitive damages, penalties, excise taxes and assessed with respect to
employee benefit plans and amounts paid in settlement actually and reasonably
incurred by such director or officer in connection with such action, suite,
appeal or proceeding to the full extent permissible under Pennsylvania law.
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Subject to certain exceptions, the Bylaws of the Company also provide
for the elimination of a director's liability for monetary damages for any
action or any failure to take any action, except to the extent that by law a
director's liability cannot be limited. The provisions of this section do not
apply to the responsibility or liability of a director pursuant to any criminal
statute or the liability of a director for the payment of taxes pursuant to
local, state, or federal law.
The indemnification and advancement of expenses provided by Article 9
are not exclusive of any other rights of indemnification. The Company has the
power to purchase insurance on behalf of any person to whom Article 9 is
applicable.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, 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.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits and Exhibits Index Page Number
In Sequential
Numbering
Exhibit No. System
- ----------- ------
4 Fidelity Bancorp, Inc. 15
1997 Employee Stock Compensation Program
5 Opinion of Plowman, Spiegel & Lewis, P.C. 34
23A Consent of KMPG Peat Marwick 36
23B Consent of Plowman, Spiegel & Lewis, P.C.
(included in Exhibit 5)
24 Power of Attorney of Directors and Officers
(included on Signature Page)
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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) shall not apply if the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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 the time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the securities
Exchange Act of 1934, and where applicable, each filing of
an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling person of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities, other than the
payment of the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action or suit or proceeding
as asserted by
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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.
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 Pittsburgh, Commonwealth of Pennsylvania on March 3,
1998.
FIDELITY BANCORP, INC.
By: /s/William L. Windisch
----------------------
William L. Windisch, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William L. Windisch and Richard G.
Spencer, and each of them, his or her true and law attorney-in-fact, as agent
with full power of substitution and resubstitution for him or her and in his or
her name, place and stead, in any and all capacity, to sign any or all
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 full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as they might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following person in the capacities
and on the dates indicated.
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Capacity Date
-------- ----
/s/ William L. Windisch President, Chief March 3, 1998
- ------------------------- Executive Officer
William L. Windisch and Director
(Principal Executive
Officer)
/s/ Richard G. Spencer Vice President, March 3, 1998
- ------------------------- Chief Financial Officer,
Richard G. Spencer and Treasurer (Principal
Financial and Principal
Accounting Officer)
/s/ J. Robert Gales Director March 3, 1998
- -------------------------
J.Robert Gales
/s/ Joanne Ross Wilder Director March 3, 1998
- -------------------------
Joanne Ross Wilder
/s/ Robert F. Kastelic Director March 3, 1998
- -------------------------
Robert F. Kastelic
/s/ Oliver D. Keefer Director March 3, 1998
- -------------------------
Oliver D. Keefer
Charles E. Nettrour Director March 3, 1998
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EXHIBIT 4
FIDELITY BANCORP, INC.
1997 EMPLOYEE STOCK COMPENSATION PROGRAM
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FIDELITY BANCORP, INC.
1997 EMPLOYEE STOCK COMPENSATION PROGRAM
1. Purpose. This Fidelity Bancorp, Inc. 1997 Employee Stock
Compensation Program ("Program") is intended to secure for Fidelity Bancorp,
Inc., Fidelity Bank, PaSB ("Bank"), any subsidiaries of either Fidelity Bancorp,
Inc. or the Bank (collectively, the "Corporation") and its stockholders the
benefits arising from ownership of the Corporation's common stock, par value
$.01 per share ("Common Stock"), by those selected officers and other key
employees of the Corporation who will be responsible for its future growth. The
Program is designed to help attract and retain superior personnel for positions
of responsibility with the Corporation and to provide officers and key employees
with an additional incentive to contribute to the success of the Corporation.
2. Elements of the Program. In order to maintain flexibility in the
award of stock benefits, the Program is comprised of four parts. The first part
is the Incentive Stock Option Plan ("Incentive Plan"). The second part is the
Compensatory Stock Option Plan ("Compensatory Plan"). The third part is the
Stock Appreciation Rights Program ("S.A.R. Plan"). The fourth part is the
Performance Shares Plan ("Performance Plan"). Copies of the Incentive Plan,
Compensatory Plan, S.A.R. Plan and Performance Plan are attached hereto as Part
I, Part II, Part III and Part IV, respectively, and are collectively referred to
herein as the "Plans." The grant of an option, appreciation right or performance
share under one of the Plans shall not be construed to prohibit the grant of an
option, appreciation right or performance share under any of the other Plans.
3. Applicability of General Provisions. Unless any Plan specifically
indicates to the contrary, all Plans shall be subject to the General Provisions
of the Program set forth below.
4. Administration of the Plans. The Plans shall be administered,
construed, governed and amended in accordance with their respective terms.
GENERAL PROVISIONS OF THE PROGRAM
Article 1. Administration. The Program shall be administered by a
committee appointed by the Board of Directors of the Corporation and composed of
not less than two directors of the Corporation, none of whom is a full-time
officer or employee of the Corporation. The committee, when acting to administer
the Program, is referred to as the "Program Administrators." Each Program
Administrator shall be a "non-employee, director" as defined in Rule
16b-3(b)(3)(i) promulgated under the Securities Exchange Act of 1934. Any action
of the Program Administrators shall be taken by majority vote or the unanimous
written consent of the Program Administrators. No Program Administrator shall be
liable for any action or determination made in good faith with respect to the
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Program or to any option, stock appreciation right, or performance share granted
thereunder.
Article 2. Authority of Program Administrators. Subject to the other
provisions of this Program, and with a view to effecting its purpose, the
Program Administrators shall have sole authority in their absolute discretion:
(a) to construe and interpret the Program; (b) to define the terms used herein;
(c) to prescribe, amend and rescind rules and regulations relating to the
Program; (d) to determine the employees to whom options, appreciation rights and
performance shares shall be granted under the Program; (e) to determine the time
or times at which options, appreciation rights and performance shares shall be
granted under the Program; (f) to determine the number of shares subject to any
option or stock appreciation right under the Program and the number of shares to
be awarded as performance shares under the Program as well as the option price,
and the duration of each option, appreciation right and performance share, and
any other terms and conditions of options, appreciation rights and performance
shares; (g) to terminate the Program; and (h) to make any other determinations
necessary or advisable for the administration of the Program and to do
everything necessary or appropriate to administer the Program. All decisions,
determinations and interpretations made by the Program Administrators shall be
binding and conclusive on all participants in the Program and on their legal
representatives, heirs and beneficiaries.
Article 3. Maximum Number of Shares Subject to the Program. The maximum
aggregate number of shares of Common Stock available pursuant to the Plans,
subject to adjustment as provided in Article 6 hereof, shall be 155,000 shares
of the Corporation's Common Stock. If any of the options granted under this
Program expire or terminate for any reason before they have been exercised in
full, the unpurchased shares subject to those expired or terminated options
shall again be available for the purposes of the Program. If the performance
objectives associated with the grant of any performance share(s) are not
achieved within the specified performance period or if the performance share
grant terminates for any reason before the performance objective date arrives,
the shares of Common Stock associated with such performance shares shall again
be available for the purposes of the Program.
Article 4. Eligibility and Participation. Only regular full-time
employees of the Corporation, including officers whether or not directors of the
Corporation, or of any subsidiary, shall be eligible for selection by the
Program Administrators to participate in the Program. Directors who are not
full-time, salaried employees of the Corporation, or of any subsidiary, shall
not be eligible to participate in the Program.
Article 5. Effective Date and Term of Program. The Program shall become
effective upon its adoption by the Board of
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Directors of the Corporation, subject to the subsequent approval of the Program
by the stockholders of the Corporation by such vote as may be required by
applicable laws and regulations, which vote shall be taken within 12 months of
adoption of the Program by the Corporation's Board of Directors. Options,
appreciation rights and performance shares may be granted under this Program
prior to obtaining stockholder approval of the Program, provided that any such
options or appreciation rights or performance shares shall be contingent upon
such stockholder approval being obtained and may not be exercised prior to such
approval.
The Program shall continue in effect for a term of ten years unless sooner
terminated under Article 2 of the General Provisions.
Article 6. Adjustments. If the shares of Common Stock of the
Corporation as a whole are increased, decreased, changed into or exchanged for a
different number or kind of shares or securities through merger, consolidation,
combination, exchange of shares, other reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, an
appropriate and proportionate adjustment shall be made in the maximum number and
kind of shares as to which options, appreciation rights and performance shares
may be granted under this Program. A corresponding adjustment changing the
number or kind of shares allocated to unexercised options, appreciation rights,
performance shares or portions thereof, which shall have been granted prior to
any such change, shall likewise be made. Any such adjustment in outstanding
options and appreciation rights shall be made without change in the aggregate
purchase price applicable to the unexercised portion of the option or
appreciation right, but with a corresponding adjustment in the price for each
share or other unit of any security covered by the option or appreciation right.
In making any adjustment to the number of shares pursuant to this Article 6, any
fractional shares shall be disregarded.
Article 7. Termination and Amendment of Program. The Program shall
terminate no later than ten years from the date such Program is adopted by the
Board of Directors or the date such Program is approved by the stockholders,
whichever is earlier. No options, appreciation rights or performance shares
shall be granted under the Program after that date. Subject to the limitation
contained in Article 8 of the General Provisions, the Program Administrators may
at any time amend or revise the terms of the Program, including the form and
substance of the option, appreciation right, and performance share agreements to
be used hereunder; provided that no amendment or revision shall (a) increase the
maximum aggregate number of shares that may be sold, appreciated or distributed
pursuant to options, appreciation rights or performance shares granted under
this Program, except as permitted under Article 6 of the General Provisions or
as may be approved by the stockholders of the Corporation; (b) change the
minimum purchase price for shares under Section 4 of Plan I; (c)
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increase the maximum term established under the Plans for any option,
appreciation right or performance share; (d) permit the granting of an option,
appreciation right or performance share to anyone other than as provided in
Article 4 of the General Provisions; or (e) without the approval or consent of
the affected optionee, change or impair any option previously granted.
Article 8. Prior rights and Obligations. No amendment, suspension or
termination of the Program shall, without the consent of the employee who has
received an option, appreciation right or performance share, alter or impair any
of that employee's rights or obligations under any option, appreciation right or
performance share granted under the Program prior to such amendment, suspension
or termination.
Article 9. Privileges of Stock Ownership. Notwithstanding the exercise
of any options granted pursuant to the terms of this Program or the achievement
of any performance objective specified in any performance share granted pursuant
to the terms of this Program, no employee shall have any of the rights or
privileges of a stockholder of the Corporation in respect of any shares of stock
issuable upon the exercise of his or her option or achievement of his or her
performance goal until certificates representing the shares have been issued and
delivered. No shares shall be required to be issued and delivered upon exercise
of any option or achievement of any performance goal as specified in a
performance share unless and until all of the requirements of law and of all
regulatory agencies having jurisdiction over the issuance and delivery of the
securities shall have been fully complied with. No adjustment shall be made for
dividends or any other distributions for which the record date is prior to the
date on which such stock certificate is issued.
Article 10. Reservation of Shares of Common Stock. The Corporation,
during the term of this Program, will at all times reserve and keep available
such number of shares of its Common Stock as shall be sufficient to satisfy the
requirements of the Program. In addition, the Corporation will from time to
time, as is necessary to accomplish the purposes of this Program, seek to obtain
from any regulatory agency having jurisdiction any requisite authority in order
to issue and sell shares of Common Stock hereunder. The inability of the
Corporation to obtain from any regulatory agency having jurisdiction the
authority deemed by the Corporation's counsel to be necessary to the lawful
issuance and sale of any shares of its stock hereunder shall relieve the
Corporation of any liability in respect of the non-issuance or sale of the stock
as to which the requisite authority shall not have been obtained.
Article 11. Tax Withholding. The exercise of any option, appreciation
right or performance share granted under the Program is subject to the condition
that if at any time the Corporation shall determine, in its discretion, that the
satisfaction of
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withholding tax or other withholding liabilities under any state or federal law
is necessary or desirable as a condition of, or in any connection with, such
exercise or the delivery or purchase of shares pursuant thereto, then in such
event, the exercise of the option, appreciation right or performance share shall
not be effective unless such withholding tax or other withholding liabilities
shall have been satisfied in a manner acceptable to the Corporation.
Article 12. Employment. Nothing in the Program or in any option, stock
appreciation right or performance share award shall confer upon any eligible
employee any right to continued employment by the Corporation, or by any
subsidiary corporations, or limit in any way the right of the Corporation or its
subsidiary corporations at any time to terminate or alter the terms of that
employment.
PLAN I
INCENTIVE STOCK OPTION PLAN
Section 1. Purpose. The purpose of this Incentive Plan is to promote
the growth and general prosperity of the Corporation by permitting the
Corporation to grant options to purchase shares of its Common Stock. This
Incentive Plan is designed to help attract and retain superior personnel for
positions of responsibility with the Corporation, or of any subsidiary, and to
provide key employees with an additional incentive to contribute to the success
of the Corporation. The Corporation intends that options granted pursuant to the
provisions of the Incentive Plan will qualify and will be identified as
"incentive stock options" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended ("Code"). This Incentive Plan is Part I of the
Corporation's Program. Unless any provision herein indicates to the contrary,
this Incentive Plan shall be subject to the General Provisions of the Program.
Section 2. Option Terms and Conditions. The terms and conditions of
options granted under this Incentive Plan may differ from one another as the
Program Administrators shall, in their discretion, determine, as long as all
options granted under this Incentive Plan satisfy the requirements of the
Incentive Plan.
Section 3. Duration of Options. Each option and all rights thereunder
granted pursuant to the terms of this Incentive Plan shall expire on the date
determined by the Program Administrators, but in no event shall any option
granted under this Incentive Plan expire later than ten years from the date on
which the option is granted, except that any employee who owns more than 10% of
the combined voting power of all classes of stock of the Corporation, or of its
subsidiaries, must exercise any options within five years from the date of
grant. In addition, each option shall be subject to early termination as
provided in this Incentive plan.
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Section 4. Purchase Price. The purchase price for shares acquired
pursuant to the exercise, in whole or in part, of any option shall not be less
than the fair market value of the shares at the time of the grant of the option;
except that for any employee who owns more than 10% of the combined voting power
of all classes of stock of the Corporation, or of its subsidiaries, the purchase
price shall not be less than 110% of fair market value. For purposes of this
Plan I, fair market value shall be the mean of the high and low sales prices of
a share of Common Stock on the date in questions (or, if such day is not a
trading day in the U.S. markets, on the nearest preceding trading day), as
reported with respect to the principal market (or the composite of the markets,
if more than one) or national quotation system in which such shares are then
traded, or if no such prices are reported, the mean between the closing high bid
and low asked prices of a share of Common Stock on that day on the principal
market or national quotation system then in use, or if not such quotations are
available, the price furnished by a professional securities dealer making a
market in such shares selected by the Board of Directors of the Corporation.
Section 5. Maximum Amount of Options in any Calendar Year. The
aggregate fair market value (determined as of the time the option is granted) of
the Common Stock with respect to which incentive stock options, as defined in
Section 422(b) of the Code, are exercisable for the first time by any employee
during any calendar year (under the terms of this Plan and all such plans of the
Corporation and any subsidiaries) shall not exceed $100,000.
Section 6. Exercise of Options. Each option shall be exercisable in one
or more installments during its term, and the right to exercise may be
cumulative as determined by the Program Administrators. Section 14 of this
Incentive Plan provides that options are not transferable in any manner other
then by will or laws of descent and distribution. In addition, an Optionee
subject to the provisions of Section 16 of the Securities Exchange Act of 1934
must hold any securities acquired on exercise of an option for a period of at
least six months from the date of acquisition. With respect to any options that
may be granted prior to the receipt of stockholder approval of the Program, the
six-month period shall not commence until the date such stockholder approval is
obtained. No option may be exercised for a fraction of a share of Common Stock.
The purchase price of any shares purchased shall be paid in full in cash or by
certified or cashier's check payable to the order of the Corporation or by
shares of Common Stock (including shares acquired pursuant to the exercise of an
option), if permitted by the Program Administrators, or by a combination of
cash, check or shares of Common Stock, at the time of exercise of the option,
provided that the form(s) of payment allowed the employee shall be established
when the option is granted. If any portion of the purchase price is paid in
shares of Common Stock, those shares shall be tendered
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at their then fair market value as determined by the Program Administrators in
accordance with Section 4 of this Incentive Plan.
Section 7. Acceleration of Right of Exercise of Installments.
Notwithstanding the first sentence of Section 6 of this Incentive Plan, in the
event the Corporation or its stockholders enter into an agreement to dispose of
all or substantially all of the assets or stock of the Corporation by means of a
sale, merger or other reorganization, liquidation or otherwise, or the sale of
assets or stock of any subsidiary with which an optionee is employed so that the
optionee would not longer be an employee of the Corporation or its subsidiaries,
any option granted pursuant to the terms of this Incentive plan shall become
immediately exercisable with respect to the full number of shares subject to
that option during the period commencing as of the date of the agreement to
dispose of all of substantially all of the assets or stock of the Corporation
(or any subsidiary) and ending when the disposition of assets or stock
contemplated by that agreement is consummated or the option is otherwise
terminated in accordance with its provisions or the provision of this Incentive
Plan, whichever occurs first; provided, however, that no option shall be
immediately exercisable under this Section 7 on account of any agreement to
dispose of all or substantially all of the assets or stock of the Corporation,
by means of a sale, merger or other reorganization, liquidation or otherwise
where the stockholders of the Corporation immediately before the consummation of
the transaction will own at least 50% of the total combined voting power of al
classes of stock entitled to vote of the surviving entity, whether the
Corporation or some other entity, immediately after the consummation of the
transaction. In the event the transaction contemplated by the agreement referred
to in this Section 7 is not consummated, but rather is terminated, canceled or
expires, the options ranted pursuant to the Incentive Plan shall thereafter be
treated as if that agreement have never been entered into.
Notwithstanding the first sentence of Section 6 of this Incentive Plan,
in the event of a change in control of the Corporation or threatened change in
control of the Corporation as determined by a vote of not less than a majority
of the Board of Directors of the Corporation, all options granted prior to such
change in control or threatened change of control shall become immediately
exercisable. The term "control" for purposes of this Section shall refer to the
acquisition of 10% or more of the voting securities of the Corporation by any
person or by persons acting as a group within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended; provided, however, that for
purposes of this Incentive Plan, no change in control or threatened change in
control shall be deemed to have occurred if prior to the acquisition of or offer
to acquire, 10% or more of the voting securities of the Corporation, the full
Board of Directors of the Corporation shall have adopted by not less than
two-thirds vote a
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resolution specifically approving such acquisition or offer. The term "person"
for purposes of this Section refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
Section 8. Written Notice Required. Any option granted pursuant to the
terms of this Incentive Plan shall be exercised when written notice of that
exercise has been given to the Corporation at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised has been received by the Corporation.
Section 9. Compliance With Securities Laws. Shares of Common Stock
shall not be issued with respect to any option granted under this Incentive Plan
unless the exercise of that option and the issuance and delivery of those shares
pursuant to that exercise shall comply with all relevant provisions of state and
federal law including, without limitation, the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the requirements
of any stock exchange or national quotation system upon which the shares may
then be listed and shall be further subject to the approval of counsel for the
Corporation with respect to such compliance. The Program Administrators may also
require an employee to whom an option has been granted under this Incentive Plan
("Optionee") to furnish evidence satisfactory to the Corporation, including a
written and signed representation letter and consent to be bound by any transfer
restriction imposed by law, legend, condition or otherwise, that the shares are
being purchased only for investment and without any present intention to sell or
distribute the shares in violation of any state or federal law, rule or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option restricting their
transferability to the extent required by law or by this Section 9.
Section 10. Employment of Optionee. Each Optionee, if requested by the
Program Administrators when the option is granted, must agree in writing as a
condition of receiving his or her option that he or she will remain in the
employ of the Corporation or any subsidiary of the Corporation, as the case may
be, following the date of the granting of that option for a period specified by
the Program Administrators, which period shall in no event exceed three years.
Nothing in this Incentive Plan or in any option granted hereunder shall confer
upon any Optionee any right to continued employment by the Corporation, or its
subsidiary corporations, or limit in any way the right of the Corporation or any
of its subsidiary corporations at any time to terminate or alter the terms of
that employment.
Section 11. Option Rights Upon Termination of Employment. If an
Optionee ceases to be employed by the
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Corporation or any subsidiary corporation (or a corporation or parent or
subsidiary of such corporation issuing or assuming a stock option in a
transaction the which Section 424(a) of the Code applies), for any reason other
than death or disability, his or her option shall immediately terminate;
provided, however, that the Program Administrators may, in their discretion,
allow such option to be exercised (to the extent exercisable on the date of
termination of employment) at any time within three months after the date of
termination of employment, unless either the option or this Incentive Plan
otherwise provides for earlier termination.
Section 12. Option Rights Upon Disability. If an Optionee becomes
disabled within the meaning of Section 22(e)(3) of the Code while employed by
the Corporation or any subsidiary corporation (or a corporation or a parent or
subsidiary of such corporation issuing or assuming a stock option in a
transaction to which Section 424(a) of the Code applies), the option maybe
exercised, to the extent exercisable on the date of termination of employment at
any time within one year after the date of termination of employment due to
disability, unless either the option or this Incentive Plan otherwise provides
for earlier termination.
Section 13. Option Rights Upon Death of Optionee. Except as otherwise
limited by the Program Administrators at the time of the grant of an option, if
an Optionee dies while employed by the Corporation or any subsidiary corporation
(or a corporation or a parent or subsidiary of such corporation issuing or
assuming a stock option in a transaction to which Section 424(a) of the Code
applies), or within three months after ceasing to be an employee thereof his or
her option shall expire one year after the date of death unless by its term it
expires sooner. During this one year or shorter period, the option may be
exercised, to the extent that it remains unexercised on the date of death, by
the person or persons to whom the Optionee's rights under the option shall pass
by will or by the laws of descent and distribution, but only to the extent that
the Optionee is entitled to exercise the option at the date of death.
Section 14. Options Not Transferable. Options granted pursuant to the
terms of this Incentive Plan may not be sold, pledged, assigned or transferred
in any manner otherwise than by will or the laws of descent and distribution and
may be exercised during the lifetime of an Optionee only by that Optionee or his
guardian or legal representative.
PLAN II
COMPENSATORY STOCK OPTION PLAN
Section 1. Purpose. The purpose of this Compensatory Plan is to permit
the Corporation to grant options to purchase shares of its Common Stock to
selected officers and full-time, key employees
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of the Corporation or any subsidiary. This Compensatory Plan is designed to help
attract and retain superior personnel for positions of responsibility with the
Corporation and its subsidiaries and to provide key employees with an additional
incentive to contribute to the success of the Corporation. Any option granted
pursuant to this Compensatory Plan shall be clearly and specifically designated
as not being an incentive stock option, as defined in Section 422(b) of the
Code. This Compensatory Plan is Part II of the Corporation's Program. Unless any
provision herein indicates to the contrary, this Compensatory Plan shall be
subject to the General Provisions of the Program.
Section 2. Option Terms and Conditions. The terms and conditions of
options granted under this Compensatory Plan may differ from one another as the
Program Administrators shall, in their discretion, determine as long as all
options granted under this Compensatory Plan satisfy the requirements of the
Compensatory Plan.
Section 3. Duration of Options. Each option and all rights thereunder
granted pursuant to the terms of this Compensatory Plan shall expire on the date
determined by the Program Administrators, but in no event shall an option
granted under the Compensatory Plan expire later than ten years and one month
from the date on which the option is granted. In addition, each option shall be
subject to early termination as provided in this Compensatory Plan.
Section 4. Purchase Price. The purchase price for shares acquired
pursuant to the exercise, in whole or in part of any option shall be equal to or
less than the fair market value of the shares at the time of the grant of the
option. For purposes of this Plan II, fair market value shall be the mean of the
high and low sales prices of a share of Common Stock on the date in question
(or, if such day is not a trading day in the U.S. markets, on the nearest
preceding trading day), as reported with respect to the principal market (or the
composite of the markets, if more than one) or national quotation system in
which such shares are then traded, or if no such prices are reported, the mean
between the closing high bid and low asked prices of a share of Common Stock on
that day on the principal market or national quotation system then in use, or if
no such quotations are available, the price furnished by a professional
securities dealer making a market in such shares selected by the Board of
Directors of the Corporation.
Section 5. Exercise of Options. Each option shall be exercisable in one
or more installments during its term and the right to exercise may be cumulative
as determined by the Program Administrators. Section 13 of this Compensatory
Plan provides that options are not transferable in any manner other than by will
or laws of descent and distribution. In addition, an Optionee subject to the
provisions of Section 16 of the Securities Exchange Act 1934
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must hold any securities acquired on exercise of an Option for a period of at
least six months from the date of acquisition. With respect to any options that
may be granted prior to the receipt of stockholder approval of the Program, the
six-month period shall not commence until the date such stockholder approval is
obtained. No options maybe exercised for a fraction of a share of Common Stock.
The purchase price of any shares purchased shall be paid in full in cash or by
certified or cashier's check payable to the order of the Corporation or by
shares of Common Stock (including shares acquired pursuant to the exercise of an
option), if permitted by the Program Administrators, or by a combination of
cash, check or shares of Common Stock, at the time of exercise of the option. If
any portion of the purchase price is paid in shares of Common Stock, those
shares shall be tendered at their then fair market value as determined by the
Program Administrators in accordance with Section 4 of the Compensatory Plan.
Section 6. Acceleration of Right of Exercise of Installments.
Notwithstanding the first sentence of Section 5 of this Compensatory Plan, if
the Corporation or its stockholders enter into an agreement to dispose of all or
substantial all of the assets or stock of the Corporation by means of a sale,
merger or other reorganization, liquidation, or otherwise, any option granted
pursuant to the terms of this Compensatory Plan shall become immediately
exercisable with respect to the full number of shares subject to that option
during the period commencing as of the date of the agreement to dispose of all
or substantially all of the assets or stock of the Corporation and ending when
the disposition of assets or stock contemplated by that agreement is
consummated, or the option is otherwise terminated in accordance with its
provisions or the provisions of this Compensatory Plan, whichever occurs first;
provided, however, that no option shall be immediately exercisable under this
Section 6 on account of any agreement to dispose of all or substantially all of
the assets or stock of the Corporation by means of a sale, merger or other
reorganization, liquidation or otherwise where the stockholders of the
Corporation immediately before the consummation of the transaction will own at
lest 50% of the total combined voting power of all classes of stock entitled to
vote of the surviving entity, whether the Corporation or some other entity,
immediately after the consummation of the transaction. In the event the
transaction contemplated by the agreement referred to in this Section 6 is not
consummated but rather is terminated, canceled or expires, the options granted
pursuant to the Compensatory Plan shall thereafter be treated as if that
agreement had never been entered into.
Notwithstanding the first sentence of Section 5 of this Compensatory
Plan, in the event of a change in control of the Corporation, or threatened
change in control of the Corporation as determined by a vote of not less than a
majority of the Board of Directors of the Corporation, all options granted prior
to such change in control or threatened change in control shall become
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immediately exercisable. The term "control" for purposes of this Section shall
refer to the acquisition of 10% or more of the voting securities of the
Corporation by any person or by persons acting as a group within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended; provided,
however, that for purposes of this Compensatory Plan, no change in control or
threatened change in control shall be deemed to have occurred if prior to the
acquisition of or offer to acquire, 10% or more of the voting securities of the
Corporation, the full Board of Directors of the Corporation shall have adopted
by not less than two-thirds votes a resolution specifically approving such
acquisition or offer. The term "person" for purposes of this Section refers to
an individual or a corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
Section 7. Written Notice Required. Any option granted pursuant to the
terms of this Compensatory Plan shall be exercised when written notice of that
exercise has been given to the Corporation at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised has been received by the Corporation.
Section 8. Compliance With Securities Laws. Shares shall not be issued
with respect to any option granted under this Compensatory Plan unless the
exercise of that option and the issuance of delivery of the shares pursuant
thereto shall comply with all relevant provisions of state and federal law,
including, without limitation, the Securities Act of 1933, as amended, the rules
and regulations promulgated thereunder and the requirement of any stock exchange
or national quotation system upon which the shares may then be listed, and shall
be further subject to the approval of counsel for the Corporation with respect
to such compliance. The Program Administrators may also require an employee to
whom an option has been granted ("Optionee") to furnish evidence satisfactory to
the Corporation, including a written and signed representation letter and
consent to be bound by any transfer restrictions imposed by law, legend,
condition or otherwise, that the shares are being purchased only for investment
purposes and without any present intention to sell or distribute the shares in
violation of any state or federal law, rule or regulation. Further, each
Optionee shall consent to the imposition of a legend on the shares of Common
Stock subject to his or her option restriction their transferability to the
extent required by law or by this Section 8.
Section 9. Employment of Optionee. Each Optionee, if requested by the
Program Administrators, must agree in writing as a condition of receiving his or
her option that he or she will remain in the employment of the Corporation or
any subsidiary, following the date of the granting of that option for a period
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specified by the Program Administrators, which period shall in no event exceed
three years. Nothing in this Compensatory Plan or in any option granted
hereunder shall confer upon any Optionee any right to continued employment by
the Corporation or any of its subsidiaries, or limit in any way the right of the
Corporation or any subsidiary at any time to terminate or alter the terms of
that employment.
Section 10. Option Rights Upon Termination of Employment. If any
Optionee under this Compensatory Plan ceases to be employed by the Corporation
or any subsidiary (or a corporation or parent or subsidiary of such corporation
issuing or assuming a stock option in a transaction to which Section 424(a) of
the Code applies), for any reason other than disability or death, his or her
option shall immediately terminate; provided, however, that the Program
Administrators may, in their discretion, allow such option to be exercise, to
the extent exercisable on the date of termination of employment, at any time
with three months after the date of termination of employment, unless either the
option or this Compensatory Plan otherwise provides for earlier termination.
Section 11. Option rights Upon Disability. If an Optionee becomes
disabled within the meaning of Section 22(e)(3) of the Code while employed by
the Corporation or any subsidiary corporation (or a corporation or a parent or
subsidiary of such corporation issuing or assuming a stock option in a
transaction to which Section 424(a) of the Code applies), the Program
Administrators, in their discretion, may allow the option to be exercised, to
the extent exercisable on the date of termination of employment or directorship,
at any time within one year after the date of termination of employment due to
disability, unless either the option or this Compensatory Plan otherwise
provides for earlier termination.
Section 12. Option Rights Upon Death of Optionee. Except as otherwise
limited by the Program Administrators at the time of the grant of an option, if
an Optionee dies while employed by the Corporation or any subsidiary corporation
(or a corporation or a parent or subsidiary of such corporation issuing or
assuming a stock option in a transaction to which Section 424(a) of the Code
applies), his or her option shall expired one year after the date of death
unless by its terms it expires sooner. During this one year or shorter period,
the option may be exercised, to the extent that it remains unexercised on the
date of death, by the person or persons to whom the Optionee's rights under the
option shall pass by will or by the laws of descent and distribution, but only
to the extent that the Optionee is entitled to exercise the option at the date
of death.
Section 13. Options Not Transferable. Options granted pursuant to the
terms of this Compensatory Plan may not be sold, pledged, assigned or
transferred in any manner otherwise than by
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will or the laws of descent and distribution and may be exercised during the
lifetime of an Optionee only by that Optionee or his guardian or legal
representative.
PLAN III
STOCK APPRECIATION RIGHTS PLAN
Section 1. Purpose. The purpose of this S.A.R. Plan is to permit the
Corporation to grant stock appreciation rights for its Common Stock to its
full-time, key employees. This S.A.R. Plan is designed to help attract and
retain superior personnel for positions of responsibility with the Corporation
and any subsidiary and to provide key employees with an additional incentive to
contribute to the success of the Corporation. This S.A.R. Plan is Part III of
the Corporation's Program. Unless any provision herein indicates to the
contrary, this S.A.R. Plan shall be subject to the General Provisions of the
Program.
Section 2. Terms and Conditions. The Program Administrators may, but
shall not be obligated to, authorize, on such terms and conditions as they deem
appropriate in each case, the Corporation to accept the surrender by the
recipient of a stock option granted under Plan I or Plan II of the right to
exercise that option, or portion thereof, in consideration for the payment by
the Corporation of an amount equal to the excess of the fair market value of the
shares of Common Stock subject to such surrendered option, or portion thereof
over the option price of such shares. Such payment, at the discretion of the
Program Administrators, may be made in shares of Common Stock valued at the then
fair market value thereto, determined as provided in Section 4 of the Plan I, in
cash or partly in cash and partly in shares of Common Stock; provided that with
respect to rights granted in tandem with incentive stock options, the Program
Administrators shall establish the form(s) of payment allowed the Optionee at
the date of grant. The Program Administrators shall not be authorized to make
payment to any Optionee in shares of the Corporation's Common Stock unless
Section 83 of the Code would apply to the Common Stock transferred to the
Optionee.
Section 3. Time Limitations. Any election by an Optionee to exercise
the stock appreciation rights provided in this S.A.R. Plan shall be made during
the period beginning on the third business day following the release for
publication of quarterly or annual financial information required to be prepared
and disseminated by the Corporation pursuant to the requirements of the Exchange
Act and ending on the twelfth business day following such date. The required
release of information shall be deemed to have been satisfied when the specified
financial data appears on or in a wire service, financial news service or
newspaper of general circulation or is otherwise first made publicly available.
In addition, no stock appreciation right may be exercised for the
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first six months following the date the stock appreciation right is granted.
Section 4. Exercise of Stock Appreciation Rights: Effect on Stock
Options and Vice Versa. Upon the exercise of a stock appreciation right, the
number of shares available under the stock option to which it relates shall
decrease by a number equal to the number of shares for which the right was
exercised. Upon the exercise of a stock option, any related stock appreciation
right shall terminate as to any number of shares subject to the right that
exceeds the total number of shares for which the stock option remains
unexercised.
Section 5. Time of Grant. With respect to options granted under Plan I,
stock appreciation rights must be granted concurrently with the stock options to
which they relate; with respect to options granted under Plan II, stock
appreciation rights may be granted concurrently or at any time thereafter prior
to the exercise or expiration of such options.
Section 6. Non-Transferable. The holder of a stock appreciation right
may not transfer or assign the right otherwise than by will or in accordance
with the laws of descent and distribution. Furthermore, in the event of the
termination of his or her service with the Corporation as an officer and/or
employee, the right may be exercised only within the period, if any, which the
option to which it relates may be exercised.
Section 7. Tandem Incentive Stock Option - Stock Appreciation Right.
Whenever an incentive stock option authorized pursuant to Plan I and a stock
appreciation right authorized hereunder are granted together and the exercise of
one affects the right to exercise the other, the following requirements shall
apply.:
(a) The stock appreciation right will expire no later than the
expiration of the underlying incentive stock option;
(b) The stock appreciation right may be for no more than the
difference between the exercise price of the underlying option and the market
price of the stock subject to the underlying option at the time the stock
appreciation right is exercised;
(c) The stock appreciation right is transferable only when the
underlying incentive stock option is transferable and under the same conditions;
(d) The stock appreciation right may be exercised only when
the underlying incentive stock option is eligible to be exercised; and
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(e) The stock appreciation right may be exercised only when
the market price of the stock subject to the option exceeds the exercise price
of the stock subject to the option.
Section 8. Tandem Stock Option - Limited Stock Appreciation Rights. The
Program Administrators may provide that any tandem stock appreciation right
granted pursuant to the Section 8 shall be a limited stock appreciation right,
in which event:
(a) The limited stock appreciation right shall be exercisable
during the period beginning on the first day following the expiration of an
Offer (as defined below) (but in no event less than six months after the date of
grant of the right) and ending on the thirtieth day following such dated;
(b) Neither the option tandem to the limited stock
appreciation right nor any other stock appreciation right tandem to such option
may be exercised at any time that the limited stock appreciation right may be
exercised, provided that this requirement shall not apply in the case of an
incentive stock option tandem to a limited stock appreciation right if and to
the extent that the Program Administrators determine that such requirement is
not consistent with applicable statutory provisions regarding incentive stock
options and the regulations issued thereunder;
(c) Upon exercise of the limited stock appreciation right, the
fair market value of the shares to which the right relates for purposes of
Section 4 of Plan I shall be determined as the highest price per share paid in
any Offer that is in effect at any time during the period beginning on the
sixtieth day prior to the date on which the limited stock appreciation right is
exercise and ending on such exercise date; provided, however, with respect to a
limited stock appreciation right tandem to an incentive stock option, the
Program Administrators shall determine the fair market value of such shares in a
different manner if and to the extent that the Program Administrators deem
necessary or desirable to conform with applicable statutory provisions regarding
incentive stock options and the regulations issued thereunder.
The term "Offer" shall mean any tender offer or exchange offer for
shares of the Corporation, provided that the person making the offer acquire
shares for the Corporation's capital stock pursuant to such offer.
Section 9. Request for Reports. A copy of the Corporation's annual
report to stockholders shall be delivered to each Optionee. Upon written
request, the Corporation shall furnish to each Optionee a copy of its most
recent Form 10-K Annual Report and each Form 10-Q Quarterly Report and Form 8-K
Current Report filed with the Securities and Exchange Commission since the end
of the Corporation's prior fiscal year.
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PLAN IV
PERFORMANCE SHARE PLAN
Section 1. Purpose. The purpose of this Performance Plan is to promote
the growth and general prosperity of the Corporation by permitting the
Corporation to grant performance shares to help attract and retain superior
personnel for positions of responsibility with the Corporation and any
subsidiary and to provide key employees with an additional incentive to
contribute to the success for the Corporation. The Performance Plan is Part IV
of the Corporation's Program. Unless any provision herein indicates to the
contrary, this Performance Plan is Part IV of the Corporation's Program. Unless
any provision herein indicates to the contrary, this Performance Plan shall be
subject to the General Provisions of the Program.
Section 2. Terms and Conditions. The Program Administrators may grant
performance shares to any employee eligible under Article 4 of the General
Provisions. Each performance share grant shall confer upon the recipient thereof
the right to receive a specified number of shares of Common Stock of the
Corporation contingent upon the achievement of specified performance objective
within a specified period. The Program Administrators shall specify the
performance objective and the period of duration of the performance share grant
at the time that such performance share is granted. Any performance shares
granted under this Plan shall constitute an unfunded promise to make future
payments to the affected employee upon the completion of specified conditions.
The grant of an opportunity to receive performance shares shall not entitle the
affected employee to any rights to specific funds(s) or assets of the
Corporation, or any parent of subsidiary.
Section 3. Cash in Lieu of Stock. In lieu of some or all of the shares
earned by achievement of the specified performance objectives within the
specified period, the Program Administrators may distribute cash in an amount
equal to the fair market value of the Common Stock at the time that the employee
achieves the performance objective within the specified period. Such fair market
value shall be determined by Section 4 of Plans I and II, on the business day
next preceding the date of payment.
Section 4. Performance Objective Period. The duration of the period
within which to achieve the performance objectives is to be determined by the
Program Administrators. The period may not be less than one year nor more than
five years from the date the performance share is granted.
Section 5. Non-Transferable. A participating employee may not transfer
or assign a performance share.
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Section 6. Performance Share Rights Upon Death or Termination of
Employment. If a participating employee dies or terminates service with the
Corporation or any subsidiary of the Corporation (or a corporation or a parent
or subsidiary of such corporation issuing or assuming a performance share in a
transaction to which Section 424(a) of the Code applies), prior to the
expiration of the performance objective period, any performance shares granted
to him during that period shall be terminated.
Section 7. Tax Consequences. No Federal income tax consequences are
incurred by the Corporation or the participating employee at the time a
performance share is granted. However, if the specified performance objective
are met, the employee will realize ordinary income at the end of the award
period equal to the amount of cash or the fair market value of the stock
received by him or her. The Corporation will ordinarily be entitled to a
deduction for federal income tax purposes at the same time and in the same
amount. The Program administrators shall be authorized to make a payment in
shares of Common Stock only if Section 83 of the Code would apply to the
transfer of Common Stock to the employee.
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EXHIBIT 5
OPINION OF
PLOWMAN, SPIEGEL & LEWIS, P.C.
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[LETTERHEAD-Plowman, Spiegel & Lewis P.C.] Charles B. Jarrett, Jr.
Second Floor March 3, 1998
The Grant Building
310 Grant Street
Pittsburgh, Pennsylvania 15219-2204
(412) 471-8521
Fax (412) 471-4481
William L. Windisch
President and Chief Executive Officer
Fidelity Bancorp, Inc.
1009 Perry Highway
Pittsburgh, PA 15237-2105
Re: Fidelity Bancorp Inc. ("Corporation")
Registration Statement Form S-8
Dear Mr. Windisch:
In connection with the above-referenced Registration Statement on
Securities Exchanges Commission ("SEC") Form S-8 pertaining to the Corporation
1997 Employee Stock Compensation program ("Plan"), we have acted as special
counsel to the Corporation and have examined all documents, transactions and
questions of law which we deemed necessary and appropriate for purposes of
rendering the following opinion.
Based upon our examination, it is our opinion that when the
Registration Statement on SEC Form S-8 is filed and becomes effective under the
Securities Act of 1933, those shares of $0.01 par value common stock of the
Corporation issued and distributed thereunder and paid for in accordance with
the terms of the Plan will be duly authorized, validly issued, fully-paid and
nonassessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement on SEC Form S-8
Very truly yours,
PLOWMAN, SPIEGEL & LEWIS, P.C.
/s/ Charles B. Jarrett, Jr.
---------------------------
Charles B. Jarrett, Jr.
CBJ/dms
Enclosures
34
EXHIBIT 23 - A
CONSENT OF KMPG PEAT MARWICK LLP
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Fidelity Bancorp, Inc.'s 1997 Employee
Stock Compensation Program of our report dated October 31, 1997, with respect to
the consolidated financial statements of Fidelity Bancorp, Inc., as of September
30, 1997 and 1996 and the related consolidated statements of income,
stockholders' equity and cash flows for each of the years in the three-year
period ended September 30, 1997, which report appears in the September 30, 1997
annual report on Form 10-KSB of Fidelity Bancorp, Inc..
March 4, 1998 /s/ KPMG Peat Marwick LLP
-------------------------
KPMG Peat Marwick LLP
36
