As filed with the Securities and Exchange Commission on January 25, 1999
Registration No. 333-______________________
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 registrant as specified in its charter)
Pennsylvania 25-1705405
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1009 Perry Highway
Pittsburgh, Pennsylvania 15237
(412) 367-3300
(Address of principal executive offices)
Fidelity Bancorp, Inc.
1998 Stock Compensation Plan
(Full Title of the Plan)
Richard Fisch, Esq.
Ruel B. Pile, Esq.
Malizia, Spidi, Sloane & Fisch, P.C.
1301 K Street, N.W.
Suite 700 East
Washington, D.C. 20005
(202) 434-4660
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to Offering Aggregate Offering Registration
be Registered be Registered Price Per Unit Price (2) Fee (2)
Common Stock
$.10 par value 15,590 shares(1) (2) $272,825 $75.85
============================================================================================================
</TABLE>
(1) The maximum number of shares of common stock issuable upon exercise of
options granted or to be granted under the Fidelity Bancorp, Inc. 1998
Stock Compensation Plan consists of 15,590 shares which are being
registered under this Registration Statement and for which a
registration fee is being paid. Additionally, an indeterminate number
of additional shares which may be offered and issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions are being registered hereunder for which no additional fee
is required.
(2) Under Rule 457(h) of the 1933 Act, the registration fee may be
calculated, inter alia, based upon the price at which the stock options
may be exercised. 15,590 shares are being registered hereby, of which
no shares are currently under option. The 15,590 shares are being
registered based upon the closing price of the common stock of Fidelity
Bancorp, Inc. as reported on the Nasdaq National Market System on
January 15, 1999, of $17.50 per share for a total offering of $272,825.
Under Rule 462 of the 1933 Act, the Registration Statement on Form S-8
shall be effective upon filing with the Commission.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
- -------------------------
Item 2. Registrant Information and Employee Plan Annual Information. *
- --------------------------------------------------------------------
*This Registration Statement relates to the registration of 15,590
shares of Fidelity Bancorp, Inc. (the "Company" or "Registrant") common stock,
$.10 par value per share (the "Common Stock") issuable to employees, officers
and directors of the Registrant or its subsidiaries as compensation for services
in accordance with the Fidelity Bancorp, Inc. 1998 Stock Compensation Plan (the
"Plan"). Documents containing the information required by Part I of this
Registration Statement will be sent or given to participants in the Plan as
specified by Rule 428(b)(1). Such documents are not filed with the Securities
and Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424, in
reliance on Rule 428.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------------------------------------------------
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and, accordingly, files
periodic reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements, and other information
concerning the Company filed with the Commission may be inspected and copies may
be obtained (at present rates) at the Commission's Public Reference Section,
Room 1024, 450 Fifth Street, N.W., Washington, DC 20549.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement and the Prospectus constituting Part I
of this Registration Statement:
(a) The Company's Registration Statement on Form S-4 (No. 33-55384) as
filed with the Commission on December 3, 1992 and any amendments thereto;
(b) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998, as filed with the Commission pursuant to Rule 15d-13;
(c) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act") since the
end of the fiscal year covered by audited consolidated financial statements
contained in the Form S-4 referred to in Item 3(a) above; and
(d) the description of the Common Stock, contained in the Company's
Registration Statement on Form 8-A as filed with the Commission on April 9, 1997
and all amendments thereto or reports filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13, 14, or
15(d) of the 1934 Act after the date hereof and prior to the termination of the
offering of the shares of Common Stock shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents.
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<PAGE>
Item 4. Description of Securities.
- ----------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- -----------------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
- --------------------------------------------------
Section 1741 of the Pennsylvania Business Corporation Law provides that
an officer, director, employee or agent may be indemnified by the Company from
and against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in connection with threatened, pending or contemplated
proceedings (other than an action by or in the right of the Company) if such
person acted in good faith in a manner that such person reasonably believes to
be in, or not opposed to, the best interests of the Company.
Pursuant to the Company's Articles of Incorporation, a director of the
Company shall not be personally liable for monetary damages for any action
taken, or any failure to take any action, as a director except to the extent
that by law a director's liability for monetary damages may not be limited. The
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
including actions by or in the right of the Company, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines, excise taxes and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding to the full extent permissible
under Pennsylvania law.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act of 1933, as amended. Additionally,
the Company has in force a Directors and Officers Liability Policy underwritten
by Fidelity and Deposit with a $3.0 million aggregate limit of liability and an
aggregate deductible of $50,000 per loss both for claims directly against
officers and directors and for claims where the Company is required to indemnify
directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 ("1933 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 1933 Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
- --------------------------------------------
Not applicable.
II-2
<PAGE>
Item 8. Exhibits
- -----------------
For a list of all exhibits filed or included as part of this
Registration Statement, see "Index to Exhibits" at the end of this Registration
Statement.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do no apply if the
registration statement is on Form S-3, Form S-8 or F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
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 such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous 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.
II-3
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(c) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the 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 1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy expressed in the Securities Act
of 1933 Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh in the Commonwealth of Pennsylvania, on
the 22nd day of January, 1999.
FIDELITY BANCORP, INC.
By: /s/ William L. Windisch
----------------------------------------
William L. Windisch
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Fidelity Bancorp, Inc., do hereby
severally constitute and appoint William L. Windisch as our true and lawful
attorney and agent, to do any and all things and acts in our names in the
capacities indicated below and to execute any and all instruments for us and in
our names in the capacities indicated below which said William L. Windisch may
deem necessary or advisable to enable Fidelity Bancorp, Inc. to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the Registration
Statement on Form S-8 relating to the offering of the Company's Common Stock,
including specifically, but not limited to, power and authority to sign, for any
of us in our names in the capacities indicated below, the Registration Statement
and any and all amendments (including post-effective amendments) thereto; and we
hereby ratify and confirm all that said William L. Windisch shall 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 below by the following persons in the
capacities and on January 22, 1999.
/s/ William L. Windisch /s/ Richard G. Spencer
- ------------------------------------- -----------------------------------
William L. Windisch Richard G. Spencer
President and Chief Executive Officer Vice President & Treasurer
(Principal Executive Officer) (Principal Financial and Accounting
Officer)
/s/ John R. Gales /s/ Robert F. Kastelic
- ------------------------------------- -----------------------------------
John R. Gales Robert F. Kastelic
Director Director
/s/ Oliver D. Keefer /s/ Charles E. Neuttrour
- ------------------------------------- -----------------------------------
Oliver D. Keefer Charles E. Neuttrour
Director Director
/s/ Joanne Ross Wilder
- -------------------------------------
Joanne Ross Wilder
Director
<PAGE>
INDEX TO EXHIBITS
Exhibit Description Page
- ------- ----------- ----
4.1 Fidelity Bancorp, Inc. 8
1998 Stock Compensation Plan
4.2 Form of Stock Option Agreement to be entered into 17
with respect to Non-Incentive Stock Options
5.1 Opinion of Malizia, Spidi, Sloane & Fisch, P.C. as to the 22
validity of the Common Stock being registered
23.1 Consent of Malizia, Spidi, Sloane & Fisch, P.C. (appears --
in their opinion filed as Exhibit 5.1)
23.2 Consent of Independent Accountants 25
24 Reference is made to the Signatures section of this --
Registration Statement for the Power of Attorney
contained therein
EXHIBIT 4.1
Fidelity Bancorp, Inc.
1998 Stock Compensation Plan
<PAGE>
FIDELITY BANCORP, INC.
1998 STOCK COMPENSATION PLAN
1. Purpose of the Plan. The Plan shall be known as the Fidelity
Bancorp, Inc. ("Company") 1998 Stock Compensation Plan (the "Plan"). The purpose
of the Plan is to retain and reward qualified personnel for positions of
substantial responsibility as officers and members of the Board of Director of
the Company or any present or future parent or subsidiary of the Company to
promote the success of the business. The Plan is intended to provide for the
grant of Stock Options that are not "Incentive Stock Options," within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. Definitions. The following words and phrases when used in this Plan
with an initial capital letter, unless the context clearly indicates otherwise,
shall have the meaning as set forth below. Wherever appropriate, the masculine
pronoun shall include the feminine pronoun and the singular shall include the
plural.
(a) "Award" means the grant by the Committee or in accordance with
the terms of the Plan of a Stock Option.
(b) "Board" shall mean the Board of Directors of the Company, or any
successor or parent corporation thereto.
(c) "Change in Control" shall mean: (i) the sale of all, or a
material portion, of the assets of the Company; (ii) the merger or
recapitalization of the Company whereby the Company is not the surviving entity;
(iii) a change in control of the Company, as otherwise defined or determined by
the Pennsylvania Department of Banking or regulations promulgated by it; or (iv)
the acquisition, directly or indirectly, of the beneficial ownership (within the
meaning of that term as it is used in Section 13(d) of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder) of twenty-five
percent (25%) or more of the outstanding voting securities of the Company by any
person, trust, entity or group. This limitation shall not apply to the purchase
of shares by underwriters in connection with a public offering of Company stock,
or the purchase of shares of up to 25% of any class of securities of the Company
by a tax-qualified employee stock benefit plan. The term "person" 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. The decision of the Committee as
to whether a Change in Control has occurred shall be conclusive and binding.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder.
(e) "Committee" shall mean the Board or the Stock Compensation
Committee appointed by the Board in accordance with Section 5(a) of the Plan.
(f) "Common Stock" shall mean the common stock of the Company, or
any successor or parent corporation thereto.
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(g) "Company" shall mean the Fidelity Bancorp, Inc., the parent
corporation of the Bank, or any successor or Parent thereof.
(h) "Director" shall mean a member of the Board of the Company, or
any successor or parent corporation thereto.
(i) "Disability" means any physical or mental impairment which
renders the Participant incapable of continuing in the employment or service of
the Savings Bank or the Parent in his then current capacity as determined by the
Committee.
(j) "Dividend Equivalent Rights" shall mean the rights to receive a
cash payment in accordance with Section 10 of the Plan.
(k) "Effective Date" shall mean February 17, 1998.
(l) "Employee" shall mean any person employed by the Company or any
present or future Parent or Subsidiary of the Company. "Non-Employee" shall mean
an individual not employed by the Company or any present or future Parent or
Subsidiary of the Company.
(m) "Fair Market Value" shall mean: (i) if the Common Stock is
traded otherwise than on a national securities exchange, then the Fair Market
Value per Share shall be equal to the mean between the last bid and ask price of
such Common Stock on such date or, if there is no bid and ask price on said
date, then on the immediately prior business day on which there was a bid and
ask price. If no such bid and ask price is available, then the Fair Market Value
shall be determined by the Committee in good faith; or (ii) if the Common Stock
is listed on a national securities exchange, then the Fair Market Value per
Share shall be not less than the average of the highest and lowest selling price
of such Common Stock on such exchange on such date, or if there were no sales on
said date, then the Fair Market Value shall be not less than the mean between
the last bid and ask price on such date.
(n) "Option" or "Stock Option" shall mean an Award granted to this
Plan providing the holder of such Option with the right to purchase Common
Stock.
(o) "Optioned Stock" shall mean stock subject to an Option granted
pursuant to the Plan.
(p) "Optionee" shall mean any person who receives an Option or Award
pursuant to the Plan.
(q) "Parent" shall mean any present or future corporation which
would be a "parent corporation" as defined in Sections 424(e) and (g) of the
Code.
(r) "Participant" means any Employee or director of the Company or
any Parent or Subsidiary of the Company or any other person providing a service
to the Company who is selected by the Committee to receive an Award, or who by
the express terms of the Plan is granted an Award.
(s) "Plan" shall mean the Fidelity Bancorp, Inc. 1998 Stock
Compensation Plan.
2
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(t) "Savings Bank" or "Bank" shall mean Fidelity Bank, PaSB,
Pittsburgh, Pennsylvania, or any successor corporation thereto.
(u) "Share" shall mean one share of the Common Stock.
(v) "Subsidiary" shall mean any present or future corporation which
constitutes a "subsidiary corporation" as defined in Sections 424(f) and (g) of
the Code.
3. Shares Subject to the Plan. Except as otherwise required by the
provisions of Section 11 hereof, the aggregate number of Shares with respect to
which Awards may be made pursuant to the Plan shall not exceed 15,590 Shares.
Such Shares may either be from authorized but unissued shares or shares
purchased in the market for Plan purposes. If an Award shall expire, become
unexercisable, or be forfeited for any reason prior to its exercise, new Awards
may be granted under the Plan with respect to the number of Shares as to which
such expiration has occurred.
4. Six Month Holding Period.
Except in the event of death or disability of the Optionee or a
Change in Control of the Company, a minimum of six months must elapse between
the date of the grant of an Option and the date of the sale of the Common Stock
received through the exercise of such Option.
5. Administration of the Plan.
(a) Composition of the Committee. The Plan shall be administered by
the Board of Directors of the Company or a Committee which shall consist of not
less than two Directors of the Company appointed by the Board and serving at the
pleasure of the Board. All persons designated as members of the Committee shall
meet the requirements of a "Non-Employee Director" within the meaning of Rule
16b-3 under the Securities Exchange Act of 1934, as amended, as found at 17 CFR
ss.240.16b-3.
(b) Powers of the Committee. The Committee is authorized (but only
to the extent not contrary to the express provisions of the Plan or to
resolutions adopted by the Board) to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to the Plan, to determine the form and
content of Awards to be issued under the Plan and to make other determinations
necessary or advisable for the administration of the Plan, and shall have and
may exercise such other power and authority as may be delegated to it by the
Board from time to time. A majority of the entire Committee shall constitute a
quorum and the action of a majority of the members present at any meeting at
which a quorum is present shall be deemed the action of the Committee. In no
event may the Committee revoke outstanding Awards without the consent of the
Participant.
The President of the Company, the Vice President/Chief Financial
Officer and such other officers as shall be designated by the Committee are
hereby authorized to execute written agreements evidencing Awards on behalf of
the Company and to cause them to be delivered to the Participants. Such
agreements shall set forth the Option exercise price, the number of shares of
Common Stock subject to such Option, the expiration date of such Options, and
such other terms and restrictions applicable to such Award as are determined in
accordance with the Plan or the actions of the Committee.
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(c) Effect of Committee's Decision. All decisions, determinations
and interpretations of the Committee shall be final and conclusive on all
persons affected thereby.
6. Eligibility for Awards and Limitations.
(a) The Committee shall from time to time determine the Participants
who shall be granted Awards under the Plan and the number of Awards to be
granted to each such persons. In selecting Participants and in determining the
number of Shares of Common Stock to be granted to each such Participant, the
Committee may consider the nature of the prior and anticipated future services
rendered by each such Participant, each such Participant's current and potential
contribution to the Company and such other factors as the Committee may, in its
sole discretion, deem relevant. Participants who have been granted an Award may,
if otherwise eligible, be granted additional Awards.
(b) In no event shall Shares subject to Options granted to any
Participant exceed more than 30% of the total number of Shares authorized for
delivery under the Plan.
7. Term of the Plan. The Plan shall continue in effect for a term of
ten (10) years from the Effective Date, unless the Plan is terminated by the
Board in accordance with the Plan.
8. Terms and Conditions of Stock Options. Stock Options may be granted
or awarded only to Participants. Each Stock Option granted pursuant to the Plan
shall be evidenced by an instrument in such form as the Committee shall from
time to time improve. Each Stock Option granted pursuant to the Plan shall
comply with, and be subject to, the following terms and conditions:
(a) Option Price. The price per Share at which each Incentive Stock
Option granted by the Committee under the Plan may be exercised shall not, as to
any particular Stock Option, be less than the Fair Market Value of the Common
Stock on the date that such Stock Option is granted.
(b) Payment. Full payment for each Share of Common Stock purchased
upon the exercise of any Incentive Stock Option granted under the Plan shall be
made at the time of exercise of each such Stock Option and shall be paid in cash
(in United States Dollars), Common Stock or a combination of cash and Common
Stock. Common Stock utilized in full or partial payment of the exercise price
shall be valued at the Fair Market Value at the date of exercise. The Company
shall accept full or partial payment in Common Stock only to the extent
permitted by applicable law. No Shares of Common Stock shall be issued until
full payment has been received by the Company, and no Optionee shall have any of
the rights of a stockholder of the Company until Shares of Common Stock are
issued to the Optionee.
(c) Term of Incentive Stock Option. The term of exercisability of
each Stock Option granted pursuant to the Plan shall be not more than ten (10)
years from the date each such Stock Option is granted.
(d) Exercise Generally. Except as otherwise provided by the terms
of the Plan or by action of the Committee at the time of the grant of the
Options, the Options granted will be first exercisable as of the date of grant
of such options.
(e) Cashless Exercise. Subject to vesting requirements, if
applicable, an Optionee who has held an Stock Option for at least six months may
engage in the "cashless exercise" of the Option.
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<PAGE>
Upon a cashless exercise, an Optionee shall give the Company written notice of
the exercise of the Option together with an order to a registered broker-dealer
or equivalent third party, to sell part or all of the Optioned Stock and to
deliver enough of the proceeds to the Company to pay the Option exercise price
and any applicable withholding taxes. If the Optionee does not sell the Optioned
Stock through a registered broker-dealer or equivalent third party, the Optionee
can give the Company written notice of the exercise of the Option and the third
party purchaser of the Optioned Stock shall pay the Option exercise price plus
any applicable withholding taxes to the Company.
(f) Transferability. An Incentive Stock Option granted pursuant to
the Plan shall be exercised during an Optionee's lifetime only by the Optionee
to whom it was granted and shall not be assignable or transferable otherwise
than by will or by the laws of descent and distribution.
9. Awards to Directors.
Stock Options to purchase 1,512 shares of Common Stock (subject to
adjustment for any stock dividends or stock splits between the Effective Date
and the date of grant) will be granted to each Director of the Company as of
December 31, 1999. The number of options to be awarded to each Director shall be
reduced pro rata in the event that the aggregate number of shares of Common
Stock reserved under the Plan shall not be available to satisfy the Awards
contemplated herein. Such Options shall be exercisable at a price equal to the
Fair Market Value of the Common Stock as of the date of grant of such options.
Such Options will be first exercisable as of the date of grant. Such Options
shall continue to be exercisable for a period of ten years following the date of
grant; provided that such Options shall cease to be exercisable as of 90 days
following the date of termination of service or resignation as an Employee or
Director. In the event of the Optionee's death, such Options may be exercised by
the personal representative of his estate or person or persons to whom his
rights under such Option shall have passed by will or by the laws of descent and
distribution for a period of one year from such death. Unless otherwise
inapplicable, or inconsistent with the provisions of this paragraph, the Options
to be granted to Directors hereunder shall be subject to all other provisions of
this Plan.
10. Dividend Equivalent Rights. The Committee, in its sole discretion,
may include as a term of any Option, the right of the Optionee to receive
Dividend Equivalent Rights. Such rights shall provide that upon the payment of a
dividend on the Common Stock, the holder of such Options shall receive payment
of compensation in an amount equivalent to the dividend payable as if such
Options had been exercised and such Common Stock held as of the dividend record
date. Such rights shall expire upon the expiration or exercise of such
underlying Options. Such rights are non-transferable and shall attach to Options
whether or not such Options are immediately exercisable. The dividend equivalent
payments associated with Options shall be paid to the Option holder at the
dividend payment date of the Common Stock.
11. Recapitalization, Merger, Consolidation, Change in Control and
Other Transactions.
(a) Adjustment. Subject to any required action by the stockholders
of the Company, within the sole discretion of the Committee, the aggregate
number of Shares of Common Stock for which Options may be granted hereunder, the
number of Shares of Common Stock covered by each outstanding Option, and the
exercise price per Share of Common Stock of each such Option, shall all be
proportionately adjusted for any increase or decrease in the number of issued
and outstanding Shares of Common Stock resulting from a subdivision or
consolidation of Shares (whether by reason of merger, consolidation,
recapitalization, reclassification, split-up, combination of shares, or
otherwise) or the
5
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payment of a stock dividend (but only on the Common Stock) or any other increase
or decrease in the number of such Shares of Common Stock effected without the
receipt or payment of consideration by the Company (other than Shares held by
dissenting stockholders).
(b) Change in Control. All outstanding Awards shall become
immediately exercisable in the event of a Change in Control of the Company, as
determined by the Committee. In the event of such a Change in Control, the
Committee and the Board of Directors will take one or more of the following
actions to be effective as of the date of such Change in Control:
(i) provide that such Options shall be assumed, or equivalent
options shall be substituted, ("Substitute Options") by the acquiring or
succeeding corporation (or an affiliate thereof), provided that: (A) any such
Substitute Options exchanged for Incentive Stock Options shall meet the
requirements of Section 424(a) of the Code, and (B) the shares of stock issuable
upon the exercise of such Substitute Options shall constitute securities
registered in accordance with the Securities Act of 1933, as amended, ("1933
Act") or such securities shall be exempt from such registration in accordance
with Sections 3(a)(2) or 3(a)(5) of the 1933 Act, (collectively, "Registered
Securities"), or in the alternative, if the securities issuable upon the
exercise of such Substitute Options shall not constitute Registered Securities,
then the Optionee will receive upon consummation of the Change in Control
transaction a cash payment for each Option surrendered equal to the difference
between (1) the Fair Market Value of the consideration to be received for each
share of Common Stock in the Change in Control transaction times the number of
shares of Common Stock subject to such surrendered Options, and (2) the
aggregate exercise price of all such surrendered Options, or
(ii) in the event of a transaction under the terms of which the
holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment (the "Merger Price") for each share of Common Stock
exchanged in the Change in Control transaction, to make or to provide for a cash
payment to the Optionees equal to the difference between (A) the Merger Price
times the number of shares of Common Stock subject to such Options held by each
Optionee (to the extent then exercisable at prices not in excess of the Merger
Price) and (B) the aggregate exercise price of all such surrendered Options in
exchange for such surrendered Options.
(c) Extraordinary Corporate Action. Notwithstanding any provisions
of the Plan to the contrary, subject to any required action by the stockholders
of the Company, in the event of any Change in Control, recapitalization, merger,
consolidation, exchange of Shares, spin-off, reorganization, tender offer,
partial or complete liquidation or other extraordinary corporate action or
event, the Committee, in its sole discretion, shall have the power, prior or
subsequent to such action or event to:
(i) appropriately adjust the number of Shares of Common Stock
subject to each Option, the Option exercise price per Share of Common Stock, and
the consideration to be given or received by the Company upon the exercise of
any outstanding Option;
(ii) cancel any or all previously granted Options, provided
that appropriate consideration is paid to the Optionee in connection therewith;
and/or
(iii) make such other adjustments in connection with the Plan
as the Committee, in its sole discretion, deems necessary, desirable,
appropriate or advisable; provided, however, that no action shall be taken by
the Committee which would cause Incentive Stock Options
6
<PAGE>
granted pursuant to the Plan to fail to meet the requirements of Section 422 of
the Code without the consent of the Optionee.
(d) Acceleration. The Committee shall at all times have the power
to accelerate the exercise date of Options previously granted under the Plan.
(e) Non-recurring Dividends. Upon the payment of a special or
non-recurring cash dividend that has the effect of a return of capital to the
stockholders, the Option exercise price per share shall be adjusted
proportionately as deemed equitable by the Committee at such time.
Except as expressly provided in Sections 13(a), 13(b) and 13(e) hereof,
no Optionee shall have any rights by reason of the occurrence of any of the
events described in this Section 13.
12. Time of Granting Options. The date of grant of an Option under the
Plan shall, for all purposes, be the date on which the Committee makes the
determination of granting such Option. Notice of the grant of an Option shall be
given to each individual to whom an Option is so granted within a reasonable
time after the date of such grant in a form determined by the Committee.
13. Modification of Options. At any time and from time to time, the
Board may authorize the Committee to direct the execution of an instrument
providing for the modification of any outstanding Option, provided no such
modification, extension or renewal shall confer on the holder of said Option any
right or benefit which could not be conferred on the Optionee by the grant of a
new Option at such time, or shall not materially decrease the Optionee's
benefits under the Option without the consent of the holder of the Option,
except as otherwise permitted under Section 14 hereof.
14. Amendment and Termination of the Plan.
(a) Action by the Board. The Board may alter, suspend or
discontinue the Plan.
(b) Change in Applicable Law. Notwithstanding any other
provision contained in the Plan, in the event of a change in any federal or
state law, rule or regulation which would make the exercise of all or part of
any previously granted Option unlawful or subject the Company to any penalty,
the Committee may restrict any such exercise without the consent of the Optionee
or other holder thereof in order to comply with any such law, rule or regulation
or to avoid any such penalty.
15. Conditions Upon Issuance of Shares' Limitations on Option Exercise;
Cancellation of Option Rights.
(a) Shares shall not be issued with respect to any Option granted
under the Plan unless the issuance and delivery of such Shares shall comply with
all relevant provisions of applicable law, including, without limitation, the
Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities laws and the requirements of any
stock exchange upon which the Shares may then be listed.
(b) The inability of the Company to obtain any necessary
authorizations, approvals or letters of non-objection from any regulatory body
of authority deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares issuable hereunder shall relieve the Company of
any liability with respect to the non-issuance or sale of such Shares.
7
<PAGE>
(c) As a condition to the exercise of an Option, the Company may
require the person exercising the Option to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of federal or state securities law.
(d) Notwithstanding anything herein to the contrary, upon the
termination of employment or service of an Optionee by the Company or its
Subsidiaries for "cause" within the sole discretion of the Board, all Options
held by such Participant shall cease to be exercisable as of the date of such
termination of employment or service.
(e) Upon the exercise of an Option by an Optionee (or the
Optionee's personal representative), the Committee, in its sole and absolute
discretion, may make a cash payment to the Optionee, in whole or in part, in
lieu of the delivery of shares of Common Stock. Such cash payment to be paid in
lieu of delivery of Common Stock shall be equal to the difference between the
Fair Market Value of the Common Stock on the date of the Option exercise and the
exercise price per share of the Option. Such cash payment shall be in exchange
for the cancellation of such Option. Such cash payment shall not be made in the
event that such transaction would result in liability to the Optionee or the
Company under Section 16(b) of the Securities Exchange Act of 1934, as amended,
and regulations promulgated thereunder.
16. Reservation of Shares. During the term of the Plan, the Company
will reserve and keep available a number of Shares sufficient to satisfy the
requirements of the Plan.
17. Unsecured Obligation. No Participant under the Plan shall have any
interest in any fund or special asset of the Company by reason of the Plan or
the grant of any Option under the Plan. No trust fund shall be created in
connection with the Plan or any grant of any Option hereunder and there shall be
no required funding of amounts which may become payable to any Participant.
18. Withholding Tax. The Company shall have the right to deduct from
all amounts paid in cash with respect to the cashless exercise of Options and
Dividend Equivalent Rights under the Plan and taxes required by law to be
withheld with respect to such cash payments. Where a Participant or other person
is entitled to receive Shares pursuant to the exercise of an Option, the company
shall have the right to require the Participant or such other person to pay the
Company the amount of any taxes which the Company is required to withhold with
respect to such Shares, or, in lieu thereof, to retain, or to sell without
notice, a number of Shares sufficient to cover the amount required to be
withheld.
19. No Employment Rights. No Director, Employee or other person shall
have a right to be selected as a Participant under the Plan. Neither the Plan
nor any action taken by the Committee in administration of the Plan shall be
construed as giving any person any rights of employment or retention as an
Employee, Director or in any other capacity with the Company, the Bank or other
subsidiaries.
20. Governing Law. The Plan shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, except to the
extent that federal law shall be deemed to apply.
8
EXHIBIT 4.2
Form of Stock Option Agreement to be entered into
with respect to Non-Incentive Stock Options
<PAGE>
NON-INCENTIVE STOCK OPTION AGREEMENT
1998 STOCK COMPENSATION PLAN
A NON-INCENTIVE STOCK OPTION ("Option") for a total of _____ shares of
Common Stock, par value $_____ per share, of Fidelity Bancorp, Inc. (the
"Corporation") is hereby granted to _________________ (the "Optionee") pursuant
to the Fidelity Bancorp, Inc. 1998 Stock Compensation Plan ("1998 Plan"). The
Option granted hereby is subject in all respects to the terms and provisions of
the 1998 Plan and this Agreement. The 1998 Plan is hereby incorporated herein by
reference.
1. Exercise Price. The exercise price shall be $ for each share of
Common Stock eligible to be exercised hereunder, which price is not less than
100% of the fair market value (110% of the fair market value if granted to a 10%
stockholder) of the Common Stock on the date of grant of this Option.
2. Exercise of Option. This Option shall be exercisable as of the date
of grant.
(a) Method of Exercise. This Option shall be exercisable by a
written notice which shall:
(i) state the election to exercise the Option, the number of
shares with respect to which it is being exercised, the
person in whose name the stock certificate or certificates
for such shares of Common Stock is to registered, his or her
address and Social Security number (or if more than one, the
names, addresses and Social Security numbers of each of such
persons);
(ii) be signed by the person or persons entitled to exercise
the Option and, if the Option is being exercised by any
person or persons other than the Optionee, be accompanied by
proof, satisfactory to counsel for the Corporation, of the
right of such person or persons to exercise the Option; and
(iii) be in writing and delivered in person or by certified
mail to the Corporation at its main office.
Payment of the purchase price of any shares with respect to which the Option is
being exercised shall be by cash or by certified or cashier's check payable to
the Corporation, in shares of Common Stock (including shares acquired pursuant
to the exercise of this Option) with a fair market value equivalent to the
purchase price of the shares to be acquired pursuant to this Option, by
withholding some of the shares of Common Stock which are purchased upon the
exercise of this Option or by any combination of the foregoing.
(b) Restriction on Exercise. This Option may not be exercised if
the issuance of the shares upon such exercise would constitute a violation of
any applicable federal or state securities law or other law or regulation. As a
condition to the exercise of this Option, the
<PAGE>
Corporation may require the person exercising this Option to make any
representative or warranty to the Corporation as may be required by any
applicable law or regulation.
3. Non-transferability of Option. This Option may not be transferred in
any manner otherwise than by will or the laws of descent and distribution, and
may be exercised during the lifetime of the Optionee only by the Optionee or the
Optionee's guardian or legal representative. The terms of this Option shall be
binding upon the executors, administrators, heirs, successors, guardians,
assigns or legal representatives of the Optionee.
4. Term of Option. This Option may be exercised after the earlier of
(i) ten years from the date of grant of this Option, (ii) the date on which the
Optionee ceases to be employed by the Corporation or any subsidiary for any
reason other than death or disability, (iii) in the event the Optionee dies
while employed by the Corporation or any subsidiary, one year after the date of
death unless by its term it expires sooner, and (iv) one year after the
termination of employment due to disability, unless by its term it expires
sooner. This Option may be exercised during such term only in accordance with
the 1998 Plan and the terms of this Agreement.
5. Notice of Disposition; Withholding. The Optionee shall immediately
notify the Corporation in writing of any sale, transfer, assignment or other
disposition (or action constituting a disqualifying disposition within the
meaning of Section 421 of the Internal Revenue Code of 1986, as amended) of any
shares of Common Stock acquired through exercise of this Option, within two (2)
years after the date of this Agreement or within one (1) year after the
acquisition of such shares, setting forth the date and manner of disposition,
the number of shares disposed of and the price at which such shares were
disposed of. The Corporation shall be entitled to withhold from any compensation
or other payments then or thereafter due to the Optionee such amounts as may be
necessary to satisfy any withholding requirements of federal or state law or
regulation and, further, to collect from the Optionee any additional amounts
which may be required for such purpose.
2
<PAGE>
6. Optionees Subject to Section 16(b) of the Securities Exchange Act of
1934 ("Exchange Act"). If the Optionee is subject to Section 16(h) of the
Exchange Act as of the date of this Agreement the Optionee agrees not to dispose
of either the Option (other than upon exercise or conversion) or the underlying
Common Stock until at least six (6) months shall have elapsed from the date of
grant of the Option. If the Option was granted prior to the receipt of
stockholder approval of the 1993 Program, the six-month period shall not
commence until the date of such stockholder approval is obtained.
ON BEHALF OF THE PLAN
ADMINISTRATOR OF THE FIDELITY
BANCORP, INC. 1998 STOCK
COMPENSATION PLAN
Date of Grant: February 17, 1998 By:
--------------------------------------
Attest:
----------------------------------
Agreed to and accepted this _____ day of _____________, 199_:
- --------------------------------------
Optionee
3
<PAGE>
FIDELITY BANCORP, INC. STOCK COMPENSATION PLAN
NON-INCENTIVE STOCK OPTION EXERCISE FORM
-------------------------
DATE
ATTN: Corporate Secretary
Fidelity Bancorp, Inc.
1009 Perry Highway
Pittsburgh, Pennsylvania 15237
Dear Sir or Madam:
The undersigned elects to exercise his/her Non-Incentive Stock Option to
purchase ______________ shares, par value $.10 per share, of Common Stock of
Fidelity Bancorp, Inc., under and pursuant to a Notice of Grant of Non-Incentive
Stock Option dated __________ __, 1998.
Delivered herewith is cash, or a certified or cashier's check or Fidelity
Bancorp, Inc. Common Stock, or a combination thereof, in the amount of
$______________ in payment of the option price. If Common Stock is enclosed in
full or partial consideration of the purchase price, I am also attaching a
notification from the Plan Administrator advising: (i) that such means of
payment has been authorized and (ii) as to the fair market value of the shares
proposed to be tendered by me as required by the provisions of the Plan.
The name or names to be on the stock certificate or certificates and the address
and social security number or addresses and social security numbers of such
person or persons is as follows:
Name: _______________________________________________________________________
Address: _______________________________________________________________________
_______________________________________________________________________
City State Zip Code
Social Security Number: _____________________
Very truly yours,
- ---------------------------------------------------------------
(Signature of Person or Persons Exercising the Option)
- ---------------------------------------------------------------
(Print Name and Address)
EXHIBIT 5.1
Opinion of Malizia, Spidi, Sloane & Fisch, P.C. as to
the validity of the Common Stock being registered
<PAGE>
MALIZIA, SPIDI, SLOANE & FISCH, P.C.
ATTORNEYS AT LAW
1301 K STREET, N.W.
SUITE 700 EAST
WASHINGTON, D.C. 20005
(202) 434-4660
FACSIMILE: (202) 434-4661
WRITER'S DIRECT DIAL NUMBER
January 25, 1999
Board of Directors
Fidelity Bancorp, Inc.
1009 Perry Highway
Pittsburgh, Pennsylvania 15237
RE: Registration Statement on Form S-8:
Fidelity Bancorp, Inc. 1998 Stock Compensation Plan
---------------------------------------------------
Board Members:
We have acted as special counsel to Fidelity Bancorp, Inc., a
Pennsylvania corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-8 to be filed with the Securities and
Exchange Commission (the "Registration Statement") under the Securities Act of
1933, as amended, relating to 15,590 shares of common stock, par value $.10 per
share (the "Common Stock") of the Company which may be issued upon the exercise
of options granted or which may be granted under the Fidelity Bancorp, Inc. 1998
Stock Compensation Plan (the "Plan"), as more fully described in the
Registration Statement. You have requested the opinion of this firm with respect
to certain legal aspects of the proposed offering.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion and based thereon, we are of the
opinion that the Common Stock when issued pursuant to the exercise of options
granted under and in accordance with the terms of the Plan will be duly and
validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/Malizia, Spidi, Sloane & Fisch, P.C.
---------------------------------------
Malizia, Spidi, Sloane & Fisch, P.C.
EXHIBIT 23.1
Consent of Malizia, Spidi, Sloane & Fisch, P.C.
(appears in their opinion filed as Exhibit 5.1)
EXHIBIT 23.2
Consent of Independent Accountants
<PAGE>
KPMG Peat Marwick, LLP
One Mellon Bank Center
Pittsburgh, PA 15219
Telephone (412) 391-9710
Fax (412) 391-8963
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors and Stockholders
Fidelity Bancorp, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8, pertaining to the Fidelity Bancorp, Inc.'s 1998 Stock Compensation Plan, of
our report dated October 30, 1998, relating to the consolidated balance sheets
of Fidelity Bancorp, Inc. and subsidiaries as of September 30, 1998 and 1997 and
the related consolidated statements of income, stockholders' equity, and cash
flows for the years then ended, which report appears in the September 30, 1998
annual report on Form 10-K of Fidelity Bancorp, Inc.
/s/ KPMG Peat Marwick, LLP
Pittsburgh, Pennsylvania
January 22, 1999
