As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
COLUMBIA BANCORP
(Exact name of registrant as specified in its charter)
---------------
Maryland 52-1545782
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
---------------
10480 Little Patuxent Parkway
Columbia, Maryland 21044
(410) 465-4800
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
---------------
Suburban Bancshares, Inc. 1997 Stock Option Plan
(Full title of the plan)
---------------
John M. Bond, Jr. James J. Winn, Jr., Esquire
Columbia Bancorp Piper, Marbury Rudnick & Wolfe L.L.P.
10480 Little Patuxent Parkway 6225 Smith Avenue
Columbia, Maryland 21044 Baltimore, Maryland 21209-3600
(410) 465-4800 (410) 580-3000
(Name, address, including zip code, and telephone number, including area code,
of agents for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- ---------------------------- --------------------- --------------------- --------------------- ---------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(a) Per Share(b) Offering Price(b) Registration Fee(b)
- ----------------------------- --------------------- --------------------- --------------------- ---------------------
- ----------------------------- --------------------- --------------------- --------------------- ---------------------
Common Stock,
par value $.01 per share 108,312 shares $8.755 $948,272 $251
- ----------------------------- --------------------- --------------------- --------------------- ---------------------
</TABLE>
(a) This Registration Statement shall also cover any additional shares of
Common Stock that become issuable under the Suburban Bancshares, Inc. 1997
Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration that results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(b) Pursuant to Rules 457(c) and (h)(1), the proposed maximum offering price
per share, proposed maximum aggregate offering price and amount of
registration fee are based upon the average of the high and low prices of
the Common Stock of the registrant on the NASDAQ National Market System on
March 15, 2000.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents have been filed by Columbia Bancorp (the
"Company") with the Securities and Exchange Commission and are incorporated
herein by reference: (a) Annual Report on Form 10-K for the year ended December
31, 1998; (b) Quarterly Reports on Forms 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999, (c) Current Report on Form 8-K filed
on October 4, 1999; and (d) the description of the Company's Common Stock
contained in its Registration Statement on Form 8-A dated June 9, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
remaining unsold 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. 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 this Registration Statement 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. The documents required to be so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. Description of Securities.
Not required.
ITEM 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the issuance of the Common
Stock offered by this Registration Statement are being passed upon for the
Company by Piper Marbury Rudnick & Wolfe L.L.P. of Baltimore, Maryland.
ITEM 6. Indemnification of Directors and Officers.
As permitted by the Maryland General Corporation Law ("MGCL"), Article
Eighth, Paragraph (5) of the Company's Charter provides for indemnification of
directors and officers of the Company, as follows:
<PAGE>
The Corporation shall indemnify (a) its directors to the full
extent provided by the general laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the
procedures provided by such laws; (b) its officers to the same extent
it shall indemnify its directors; and (c) its officers who are not
directors to such further extent as shall be authorized by the Board of
Directors and be consistent with law. The foregoing shall not limit the
authority of the Corporation to indemnify other employees and agents
consistent with law.
The Company's By-Laws contain indemnification procedures that implement
those of the Charter. The MGCL permits a corporation to indemnify its directors
and officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities, unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to such proceeding
and (i) was committed in bad faith or (ii) was the result of active and
deliberate dishonesty, (b) the director or officer actually received an improper
personal benefit in money, property or services, or (c) in the case of any
criminal proceeding, the director or officer had reasonable cause to believe
that the action or omission was unlawful.
As permitted by the MGCL, Article Eighth, Paragraph (6) of the
Company's Charter provides for limitation of liability of liability of directors
and officers of the Company, as follows:
To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of
this Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of the Charter of the
Corporation or repeal of any of its provisions shall limit or eliminate
the benefits provided to directors and officers under this provision
with respect to any act or omission which occurred prior to such
amendment or repeal.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) the person actually received an improper benefit or profit in money,
property or services or (ii) a judgment or other final adjudication is entered
in a proceeding based on a finding that the person's action, or failure to act,
was the result of active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding.
As permitted under Section 2-418(k) of the MGCL, the Company has
purchased and maintains insurance on behalf of its directors and officers
against any liability asserted against such directors and officers in their
capacities as such, whether or not the registrant would have the power to
indemnify such persons under the provisions of Maryland law governing
indemnification.
<PAGE>
ITEM 7. Exemption From Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Exhibit
Number Description
- ------- -----------
5 Opinion of Piper Marbury Rudnick & Wolfe L.L.P.(contains Consent
of Counsel).
10.1 Suburban Bancshares, Inc. 1997 Stock Option Plan.
10.2 Plan and Agreement to Merger, by and between Columbia Bancorp and
Suburban Bancshares, Inc., dated September 28, 1999, as amended
(incorporated by reference to the Registrant's Current Report on
Form 8-K filed on October 4, 1999).
10.3 Form of Stock Option Agreement under Suburban Bancshares, Inc.
1997 Stock Option Plan.
23.1 Consent of Counsel (contained in Exhibit 5).
23.2 Consent of Independent Accountants.
24 Power of Attorney.
ITEM 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of 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;
<PAGE>
(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.
(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.
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.
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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<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 County of Howard, and the State of Maryland on this 21st day
of March, 2000.
COLUMBIA BANCORP
By: /s/ John M. Bond, Jr.
----------------------
John M. Bond, Jr.
President, Chief Executive Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Principal Executive Officer:
/s/ John M. Bond, Jr. President, Chief Executive Date: March 21, 2000
- -------------------------- Officer and Treasurer
John M. Bond, Jr.
Principal Financial and Accounting Officer:
/s/ John A. Scaldara, Jr. Executive Vice President, Date: March 21, 2000
- -------------------------- Chief Financial Officer
John A. Scaldara, Jr. and Secretary
A Majority of the Board of Directors:
Anand S. Bhasin, John M. Bond, Jr., Garnett Y. Clark, Jr., Hugh F.Z. Cole, Jr.,
William L. Hermann, Charles C. Holman, Winfield M. Kelly, Jr., Herschel L.
Langenthal, Harry L. Lundy, Jr., Richard E. McCready, Kenneth H. Michael, James
R. Moxley, Jr., James R. Moxley, III, Vincent D. Palumbo, Lawrence A. Shulman,
Maurice M. Simpkins, Robert N. Smelkinson and Albert W. Turner.
By:/s/ John M. Bond, Jr. For himself and as Date: March 21, 2000
--------------------- Attorney-in-Fact
John M. Bond, Jr.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
5 Opinion of Piper Marbury Rudnick & Wolfe L.L.P. (contains Consent
of Counsel).
10.1 Suburban Bancshares, Inc. 1997 Stock Option Plan.
10.2 Plan and Agreement to Merger, by and between Columbia Bancorp and
Suburban Bancshares, Inc., dated September 28, 1999, as amended
(incorporated by reference to the Registrant's Current Report on
Form 8-K filed on October 4, 1999).
10.3 Form of Stock Option Agreement under Suburban Bancshares, Inc.
1997 Stock Option Plan.
23.1 Consent of Counsel (contained in Exhibit 5).
23.2 Consent of Independent Accountants.
24 Power of Attorney.
<PAGE>
Exhibit 5.0
- -------------
PIPER
MARBURY
RUDNICK
& WOLFE LLP
- -------------
6225 Smith Avenue
Baltimore, Maryland 21209-3600
www.piperrudnick.com
PHONE (410) 580-3000
FAX (410) 580-3001
March 21, 2000
Columbia Bancorp
10480 Little Patuxent Parkway
Columbia, Maryland 21044
Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel to Columbia Bancorp, a Maryland corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), pursuant to a Registration Statement on Form S-8
of the Company (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") of 108,312 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company (the "Common Stock") to
be issued pursuant to the Suburban Bancshares, Inc. 1997 Stock Option Plan (the
"Plan"). This opinion is being furnished to you at your request in connection
with the filing of the Registration Statement.
In rendering the opinion expressed herein, we have reviewed originals or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, the Charter and By-Laws of the Company, the Plan, the
proceedings of the Board of Directors of the Company or a committee thereof
relating to the organization of the Company and to the authorization and
issuance of the Shares, a short-form good standing certificate for the Company
issued by the Maryland State Department of Assessments and Taxation, a
Certificate of the Assistant Secretary of the Company (the "Certificate"), and
such other statutes, certificates, instruments, and documents relating to the
Company and matters of law as we have deemed necessary to the issuance of this
opinion.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and the accuracy and completeness of all public
records reviewed by us. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder, and we
have also assumed the due authorization by all requisite action, corporate or
other, and the valid execution and delivery by such parties of such documents
and the validity, binding effect and enforceability thereof with respect to such
parties. As to any facts materials to this opinion which we did not
independently establish or verify, we have relied solely upon the Certificate.
Based upon the foregoing, having regard for such legal considerations as we
deem relevant, and limited in all respects to applicable Maryland law, we are of
the opinion and advise you that:
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland.
(2) The Shares have been duly authorized, and, upon issuance and
delivery of the Shares in accordance with the terms of the Plan and
issuance and delivery of stock certificates representing the Shares, the
Shares will be validly issued, fully paid, and non-assessable.
In addition to the qualifications set forth above, this opinion is subject
to the qualification that we express no opinion as to the laws of any
jurisdiction other than the State of Maryland. To the extent that any documents
referred to herein are governed by the law of a jurisdiction other than
Maryland, we have assumed that the laws of such jurisdiction are the same as the
laws of the State of Maryland. We assume that the issuance of the Shares will
not cause the Company to issue shares of Common Stock in excess of the number of
such shares authorized by the Company's Charter. This opinion concerns only the
effect of the laws (exclusive of the securities or "blue sky" laws and the
principles of conflict of laws) of the State of Maryland as currently in effect.
We assume no obligation to supplement this opinion if any applicable laws change
after the date hereof or if any facts or circumstances come to our attention
after the date hereof that might change this opinion. This opinion is limited to
the matters set forth herein, and no other opinion should be inferred beyond the
matters expressly stated.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Piper Marbury Rudnick & Wolfe LLP
<PAGE>
Exhibit 10.1
SUBURBAN BANCSHARES, INC.
1997 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The purpose of this Suburban Bancshares, Inc. 1997 Stock
Option Plan (the"1997 Plan") is to advance the interests of the Company through
providing selected key Employees and Directors of the Company and its Affiliates
with the opportunity to acquire Shares. By encouraging such stock ownership, the
Company seeks to attract, retain and motivate the best available personnel for
positions of substantial responsibility; to provide additional incentive to key
Employees and Directors of the Company and its Affiliates to promote the success
of the business as measured by the value of its Shares; and generally to
increase the commonality of interests between key Employees, Directors and other
shareholders.
2. DEFINITIONS
As used herein, the following definitions shall apply:
(a) "Affiliate" shall mean any Parent Corporation or
Subsidiary Corporation of the Company, and shall include the Bank.
(b) "Agreement" shall mean a written agreement entered into in
accordance with Section 5(c).
(c) "Award" shall mean, collectively, Options, unless the
context clearly indicates a different meaning.
(d) "Bank" shall mean The Columbia Bank, a Maryland commercial
bank.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Cause" shall mean, in the context of the termination of
an Employee's employment by the Company or any Affiliate, or the removal of a
Director (whether by action of the appropriate Board of Directors, shareholders,
regulatory action or otherwise), as a result of the failure of the Participant
(other than for the reasons set forth in Section 9(a) or 9(b) hereof) to perform
in any material respect, the duties of such Participant's position; any
misconduct on the part of the Participant that, in the reasonable determination
of the Board is damaging or detrimental to the Company or any Affiliate;
conviction of a crime involving a felony, fraud, embezzlement, perjury or the
like; any breach of fiduciary duty involving personal profit or misappropriation
of funds or property of, or entrusted to, the Company or any Affiliate; or the
receipt of any written order, agreement, memorandum or other requirement from
any regulatory agency having jurisdiction over the Company or any Affiliate
requiring the termination, removal or resignation of such Participant.
<PAGE>
(g) "Change in Control" shall mean any one of the following
events occurring after the Effective Date: (1) the acquisition of ownership,
holding or power to vote more than 51% of the Bank's or Company's voting stock;
(2) the acquisition of the power to control the election of a majority of the
Bank's or Company's Directors; (3) the exercise of a controlling influence over
the management or policies of the Bank or the Company by any person or by
persons acting as a "group" (as that term is used for purposes of Section 13(d)
of the Securities Exchange Act of 1934, as amended), or (4) the failure of
Continuing Directors to constitute at least two-thirds of the Board of Directors
of the Company or the Bank (the "Company Board") during any period of two
consecutive years. For purposes of this 1997 Plan, "Continuing Directors" shall
include only those individuals who were members of the Company Board at the
Effective Date and those other individuals whose election or nomination for
election as a member of the Company Board was approved by a vote of at least
two-thirds of the Continuing Directors then in office. For purposes of this
subparagraph only, the term "person" refers to an individual or a corporation,
partnership, trust, association, company, 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.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(i) "Committee" shall mean the Personnel, Compensation and
Stock Option Committee appointed by the Board in accordance with Section 5(a)
hereof.
(j) "Common Stock" shall mean the common stock, par value
$0.01 per share, of the Company.
(k) "Company" shall mean Columbia Bancorp, a Maryland
corporation.
(l) "Continuous Service" shall mean the absence of any
interruption or termination of service as an Employee of the Company or an
Affiliate. Continuous Service shall not be considered interrupted in the case of
sick leave, military leave or any other leave of absence approved by the Company
or in the case of transfers between payroll locations of the Company or between
the Company, an Affiliate or a successor.
(m) "Director" shall mean a member of the Board or of the
Board of Directors of any Affiliate.
(n) "Effective Date" shall mean the date specified in Section
13 hereof.
<PAGE>
(o) "Employee" shall mean any person employed, as an Officer
or otherwise, by the Company or by an Affiliate, and shall include Directors of
the Company or an Affiliate who are also employed by the Company or an
Affiliate.
(p) "Exercise Price" shall mean the price per Optioned Share
at which an Option or SAR may be exercised.
(q) "ISO" means an option to purchase Common Stock which meets
the requirements set forth in the 1997 Plan, and which is intended to be and is
identified as an "incentive stock option" within the meaning of Section 422 of
the Code.
(r) "Market Value" shall mean the fair market value of the
Common Stock, as determined in accordance with Section 7(b) hereof.
(s) "Non-Employee Director" shall mean a Director who, at any
time of determination: (i) is not currently an Employee; (ii) does not, directly
or indirectly, currently receive compensation from the Company or any Affiliate
for services rendered as a consultant, other than in the capacity as a director
and other than compensation in an amount which would not require disclosure
pursuant to Item 404(a) of Regulation S-K; (iii) does not have an interest in
any transaction which would require disclosure pursuant to Item 404(a) of
Regulation S-K; and (iv) is not engaged in a business relationship which would
require disclosure pursuant to Item 404(b) of Regulation S-K.
(t) "Non-ISO" means an option to purchase Common Stock which
meets the requirements set forth in the 1997 Plan but which is not intended to
be, and is not identified as, an ISO.
(u) "Option" means an ISO and/or a Non-ISO.
(v) "Optioned Shares" shall mean Shares subject to an Option
granted pursuant to this 1997 Plan.
(w) "Parent" shall mean any present or future corporation
which would be a "parent corporation" as defined in Subsection 425(e) and (g) of
the Code.
(x) "Participant" shall mean any person who receives an Award
pursuant to the 1997 Plan.
(y) "1997 Plan" shall mean the Suburban Bancshares, Inc. 1997
Stock Option Plan.
<PAGE>
(z) "Regulation S-K" shall mean Regulation S-K of the General
Rules and Regulations promulgated under the Securities Exchange Act of 1934, as
amended, 17 CFR sec.229.1 et. seq., provided, however, if the Company shall
commence reporting as a "small business issuer" within the meaning of Rule
405promulgated under the Securities Act of 1933, as amended, references to
Regulation S-K shall refer to the comparable provisions of Regulation S-B of the
General Rules and Regulation promulgated under the Securities Exchange Act
of1934, as amended 17 CFR sec. 228.1 et. seq.
(aa) "Share" shall mean one share of Common Stock.
(ab) "Subsidiary" shall mean any present or future corporation
which would be a "subsidiary corporation" as defined in Subsection 425(f) and
(g) of the Code.
3. TERM OF THE 1997 PLAN AND AWARDS
(a) Term of the 1997 Plan. The 1997 Plan shall continue in
effect for a term of ten years from the Effective Date, unless sooner terminated
pursuant to Section 16 hereof. No Award shall be granted under the 1997 Plan
after ten years from the Effective Date.
(b) Term of Awards. The term of each Award granted under the
1997 Plan shall be established by the Committee, but shall not exceed 10 years;
provided, however, that in the case of an Employee who owns Shares representing
more than 10% of the outstanding Common Stock at the time an ISO is granted to
such Employee, the term of such ISO shall not exceed five years.
4. SHARES SUBJECT TO THE 1997 PLAN
Subject to adjustment in accordance with the provisions of
Section 12 hereof, the aggregate number of Shares with respect to which Awards
may be granted shall not exceed 115,814. Optioned Shares may either be
authorized but unissued Shares or Shares held in treasury.
5. ADMINISTRATION OF THE 1997 PLAN
(a) Composition of the Committee. The 1997 Plan shall be
administered by the Committee, which shall consist solely of not less than two
(2) members of the Board who are Non-Employee Directors. Members of the
Committee shall serve at the pleasure of the Board. In the absence at any time
of a duly appointed Committee, the 1997 Plan shall be administered by those
members of the Board who are Non-Employee Directors.
<PAGE>
(b) Powers of the Committee. Except as limited by the express
provisions of the 1997 Plan or by resolutions adopted by the Board, the
Committee shall have sole and complete authority and discretion: (i) to select
Participants and grant Awards; (ii) to determine the form and content of Awards
to be issued in the form of Agreements under the 1997 Plan; (iii) to interpret
the 1997 Plan; (iv) to prescribe, amend and rescind rules and regulations
relating to the 1997 Plan; (v) to make other determinations necessary or
advisable for the administration of the 1997 Plan; and (vi) to delegate
ministerial tasks in connection with the administration of the 1997 Plan to one
or more of the members of the Committee. The Committee 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, or acts approved in writing by a majority of the Committee
without a meeting, shall be deemed the action of the Committee.
(c) Agreement. Each Award shall be evidenced by a written
agreement containing such provisions as may be approved by the Committee. Each
such Agreement shall constitute a binding contract between the Company and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the 1997 Plan and of such Agreement. The
terms of each such Agreement shall be in accordance with the 1997 Plan, but any
Agreement may include such additional provisions and restrictions determined by
the Committee, in its discretion, provided that such additional provisions and
restrictions are not inconsistent with the terms of the 1997 Plan. In
particular, the Committee shall set forth in each Agreement: (i) the Exercise
Price of an Option; (ii) the number of Shares subject to, and the expiration
date of, the Award; (iii) the manner, time and rate (cumulative or otherwise) of
exercise or vesting of such Award; and (iv) the restrictions, if any, to be
placed upon such Award, or upon Shares which may be issued upon exercise of such
Award.
The Chairman of the Committee and such other officers as shall
be designated by the Committee are hereby authorized to execute Agreements on
behalf of the Company and to cause them to be delivered to the recipients of
Awards.
(d) Effect of the Committee's Decisions. All decisions,
determinations and interpretations of the Committee shall be final, conclusive
and binding on all persons affected thereby.
(e) Indemnification. In addition to such other rights of
indemnification as they may have, the members of the Committee shall be
indemnified by the Company in connection with any claim, action, suit or
proceeding relating to any action taken or failure to act under or in connection
with the 1997 Plan or any Award granted hereunder, to the full extent provided
for under the Company's Articles of Incorporation or Bylaws with respect to the
indemnification of Directors.
6. GRANT OF OPTIONS
(a) General. In its sole discretion, the Committee may grant
Options to Employees of the Company or its Affiliates and may grant Non-ISOs to
Directors. In selecting Participants and in determining the number of shares of
Common Stock to be granted to each such Participant pursuant to each Award
granted under the 1997 Plan, the Committee may consider the nature of the
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.
<PAGE>
(b) Special Rules for ISOs. The aggregate Market Value, as of
the date the Option is granted, of the Shares with respect to which ISOs are
exercisable for the first time by an Employee during any calendar year (under
all incentive stock option plans, as defined in Section 422 of the Code, of the
Company or any present or future Parent or Subsidiary of the Company) shall not
exceed $100,000. Notwithstanding the prior provisions of this paragraph, the
Committee may grant to Employees Options in excess of the foregoing limitations,
in which case such Options granted in excess of such limitation shall be Options
which are Non-ISOs.
7. EXERCISE PRICE FOR OPTIONS
(a) Limitations. The Exercise Price as to any particular
Option granted under the 1997 Plan shall not be less than the Market Value of
the Optioned Shares on the date of grant. In the case of an Employee who is
granted an ISO and at that time owns Shares representing more than 10% of the
Company's outstanding Shares of Common Stock, the Exercise Price of such ISO
shall not be less than 110% of the Market Value of the Optioned Shares subject
to such ISO at the time the ISO is granted.
(b) Determination of Exercise Price. If the Common Stock is
listed on a national securities exchange (including the NASDAQ National Market)
on the date in question, then the Market Value per Share shall be not less than
the average of the highest and lowest selling price on such exchange on such
date, or if there were no sales on such date, then the Exercise Price shall be
not less than the mean between the bid and asked price on such date. If the
Common Stock is traded otherwise than on a national securities exchange on the
date in question, then the Market Value per Share shall be not less than the
mean between the bid and asked price on such date, or, if there is no bid and
asked price on such date, then on the next prior business day on which there was
a bid and asked price. If no such bid and asked price is available, then the
Market Value per Share shall be its fair market value as determined by the
Committee, in its sole and absolute discretion.
(c) Reissuance of Options. Not withstanding anything herein to
the contrary, the Committee shall have the authority to cancel outstanding
Options with the consent of the Participant and to reissue new Options at a
lower Exercise Price equal to the then Market Value per share of Common Stock in
the event that the Market Value per share of Common Stock at any time prior to
the date of exercise of outstanding Options falls below the Exercise Price.
8. EXERCISE OF OPTIONS
(a) General. Any Option granted hereunder shall be exercisable
at such times and under such conditions as shall be permissible under the terms
of the1997 Plan and of the Agreement granted to a Participant. An Option may not
be exercised for a fractional Share.
<PAGE>
(b) Procedure for Exercise. A Participant may exercise
Options, subject to provisions relative to its termination and limitations on
its exercise, only by delivering to the Company both (i) written notice of
intent to exercise the Option with respect to a specified number of Shares, and
(ii) payment in full of the aggregate Exercise Price of the Shares with respect
to which the Option is being exercised, which payment may be in cash, in Common
Stock, or a combination of cash and Common Stock. Each such notice and payment
shall be delivered, or mailed by prepaid registered or certified mail, addressed
to the Treasurer of the Company at the Company's executive offices. Common Stock
utilized in full or partial payment of the Exercise Price for Options shall be
valued at its Market Value at the date of exercise.
(c) Exercisability and Termination. (i) Except as otherwise
provided herein or in the Agreement relating to any Option, no Employee may
exercise any Option unless the Employee shall have been in the Continuous
Employment of the Company or any Affiliate at all times during the period
beginning with the date of grant of any such Option and ending on the date three
(3) months prior to the date of exercise of any such Option. Notwithstanding
anything to the contrary contained herein, if an Employee's employment with the
Company is terminated for Cause, all of such Employee's Options shall terminate
effective immediately upon termination of Employee's employment. Except as
otherwise provided herein or in the Agreement relating to an Option, no
Non-Employee Director may exercise any Option more than one year after the
termination of such Non-Employee Directors service as a Director. In the event
of the removal of a Non-Employee Director for Cause, all of such Non-Employee
Director's Options shall terminate effective upon removal of such Non-Employee
Director. (ii) In the event that any Employee's employment by the Company or any
Affiliate shall terminate for any reason, other than Permanent and Total
Disability (as such term is defined in Section 22(e)(3) of the Code), death or
Cause, all of any such Employee's Options and all of any such Employee's rights
to purchase or receive shares of Common Stock pursuant thereto, shall
automatically terminate on the earlier of (A) the respective expiration dates of
such Options; or (B) the expiration of three (3) months after the date of such
termination of employment, but only if, and to the extent that, the Employee was
entitled to exercise such Option at the date of such termination of employment.
In the event that a Subsidiary ceases to be a Subsidiary of the Company, the
employment of all of its employees who are not immediately thereafter employees
of the Company shall be deemed to terminate upon the date such Subsidiary so
ceases to be a Subsidiary of the Company. (iii) In the event that the employment
of any Employee by the Company or any Affiliate (including any service by an
Employee as a Director) shall terminate as the result of the Permanent and Total
Disability of such Employee, or if the service of any Non-Employee Director
shall terminate as a result of Permanent and Total Disability, such Employee or
Non-Employee Director, as the case may be, may exercise any Option granted to
him pursuant to the 1997 Plan at any time prior to the earlier of (A) the
respective expiration dates of such Options or (B) the date which is one (1)
year after the date of such termination, but only if, and to the extent that,
the such Participant was entitled to exercise such Option at the date of such
termination. For purposes of this Section 8(iii), any Option held by an Employee
or Non-Employee Director shall be considered exercisable at the date of his
Permanent and Total disability if the only unsatisfied condition precedent to
the exercisability of such Option at such date is the passage of a specified
period of time. (iv) In the event of the death of any Participant all of the
Options granted to any such Employee may be exercised by the person or persons
to whom the Participant's rights under any such Options pass by will or the laws
of descent and distribution (including the Participant's estate during the
period of administration) at any time prior to (A) the respective expiration
dates of such Options; or (B) the date which is one (1) year after the date of
death of such Participant but only if, and to the extent that, the Participant
was entitled to exercise any of such Options at the date of death. For purposes
of this Section 8(iv), any Option held by a Participant shall be considered
exercisable at the date of his death if the only unsatisfied condition precedent
to the exercisability of such Option at the date of death is the passage of a
specified period of time.
<PAGE>
9. CHANGE IN CONTROL
(a) General. Notwithstanding the provisions of any Award which
provides for its exercise or vesting in installments, all Options shall be
immediately exercisable and fully vested upon the occurrence of a change in
control. At the time of a Change in Control, the Participant shall, at the
discretion of the Committee, be entitled to receive cash in an amount equal to
the excess of the Market Value of the Common Stock subject to such Option over
the Exercise Price of such Shares, in exchange for the cancellation of such
Options by the Participant.
(b) Exception. Notwithstanding subparagraph (a) of this
Section, in no event may an Option be canceled in exchange for cash, within the
six-month period following the date of its grant.
10. EFFECT OF CHANGES IN COMMON STOCK SUBJECT TO THE 1997 PLAN
(a) Recapitalization; Stock Splits, Etc. The number and kind
of shares reserved for issuance under the 1997 Plan, and the number and kind of
shares subject to outstanding Awards (and the Exercise Price thereof), shall be
proportionately adjusted for any increase, decrease, change or exchange of
Shares for a different number or kind of shares or other securities of the
Company which results from a merger, consolidation, recapitalization,
reorganization, reclassification, stock dividend, split-up, combination of
shares, or similar event in which the number or kind of shares is changed
without the receipt or payment of consideration by the Company.
(b) Transactions in which the Company is Not the Surviving
Entity. Subject to Section 9 hereof, in the event of (i) the liquidation or
dissolution of the Company, (ii) a merger or consolidation in which the Company
is not the surviving entity, or (iii) the sale or disposition of all or
substantially all of the Company's assets (any of the foregoing to be referred
to herein as a "Transaction"), all outstanding Awards shall be surrendered. With
respect to each Award so surrendered, the Committee shall in its sole and
absolute discretion determine whether the holder of the surrendered Award shall
receive -- (1) for each Share then subject to an outstanding Award an option for
the number and kind of shares into which each outstanding Share (other than
Shares held by dissenting stockholders) is changed or exchanged, together with
an appropriate adjustment to the Exercise Price; or (2) a payment in cash or
shares (from the Company or the successor corporation), in an amount equal to
the Market Value of the Shares subject to the Award on the date of the
Transaction, less the Exercise Price of the Award.
<PAGE>
(c) Special Rule for ISOS. Any adjustment made pursuant to
subparagraphs (a) or (b)(1) hereof shall be made in such a manner as not to
constitute a modification, within the meaning of Section 424(h) of the Code, of
outstanding ISOS.
(d) Conditions and Restrictions on New, Additional, or
Different Shares or Securities. If, by reason of any adjustment made pursuant to
this Section, a Participant becomes entitled to new, additional, or different
shares of stock or securities, such new, additional, or different shares of
stock or securities shall thereupon be subject to all of the conditions and
restrictions which were applicable to the Shares pursuant to the Award before
the adjustment was made.
(e) Other Issuances. Except as expressly provided in this
Section, the issuance by the Company or an Affiliate of shares of stock of any
class, or of securities convertible into Shares or stock of another class, for
cash or property or for labor or services either upon direct sale or upon the
exercise of rights or warrants to subscribe therefor, shall not affect, and no
adjustments shall be made with respect to, the number, class, or Exercise Price
of Shares then subject to Awards or reserved for issuance under the 1997 Plan.
11. NON-TRANSFERABILITY OF AWARDS
Awards may not be sold, pledged, assigned, hypothecated,
transferred or disposed of in any manner other than by will or by the laws of
descent and distribution, or pursuant to the terms of a "qualified domestic
relations order"(within the meaning of Section 414(p) of the Code and the
regulations and rulings thereunder).
12. TIME OF GRANTING AWARDS
The date of grant of an Award shall, for all purposes, be the
later of the date on which the Committee makes the determination of granting
such Award, and the Effective Date. Notice of the determination shall be given
to each Participant to whom an Award is so granted within a reasonable time
after the date of such grant.
13. EFFECTIVE DATE
The 1997 Plan shall be effective as of May 22, 1997. Awards
may be made prior to approval of the 1997 Plan by the shareholders of the
Company if the exercise of Awards in the form of Options, are conditioned upon
shareholder approval of the 1997 Plan.
<PAGE>
14. APPROVAL BY SHAREHOLDERS
The 1997 Plan shall be approved by shareholders of the Company
within twelve (12) months before or after the Effective Date.
15. MODIFICATION OF AWARDS
At any time, and from time to time, the Board may authorize
the Committee to direct execution of an instrument providing for the
modification of any outstanding Award, provided no such modification shall
confer on the holder of said Award any right or benefit which could not be
conferred on him by the grant of a new Award at such time, or impair the Award
without the consent of the holder of the Award.
16. AMENDMENT AND TERMINATION OF THE 1997 PLAN
The Board may from time to time amend the terms of the 1997
Plan and, with respect to any Shares at the time not subject to Awards, suspend
or terminate the 1997 Plan; provided that the provisions of Section 9 may not be
amended more than once every six months (other than to comport with changes in
the Code, the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder), and provided further that any material amendment shall be
subject to stockholder approval. No amendment, suspension or termination of the
1997 Plan shall, without the consent of any affected holders of an Award, alter
or impair any rights or obligations under any Award theretofore granted.
17. CONDITIONS UPON ISSUANCE OF SHARES
(a) Compliance with Securities Laws. Shares of Common Stock
shall not be issued with respect to any Award unless the issuance and delivery
of such Shares shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the rules and
regulations promulgated thereunder, any applicable state securities law, and the
requirements of any stock exchange upon which the Shares may then be listed. The
1997 Plan is intended to comply with Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, and any provision of the 1997 Plan which the
Committee determines in its sole and absolute discretion to be inconsistent with
said Rule shall, to the extent of such inconsistency, be inoperative and null
and void, and shall not affect the validity of the remaining provisions of the
1997 Plan.
(b) Special Circumstances. The inability of the Company to
obtain approval from any regulatory body or authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder
shall relieve the Company of any liability in respect of the non-issuance or
sale of such Shares. 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.
<PAGE>
(c) Committee Discretion. The Committee shall have the
discretionary authority to impose in Agreements such restrictions on Shares as
it may deem appropriate or desirable, including but not limited to the authority
to impose a right of first refusal or to establish repurchase rights or both of
these restrictions.
18. RESERVATION OF SHARES
The Company, during the term of the 1997 Plan, will reserve
and keep available a number of Shares sufficient to satisfy the requirements of
the 1997 Plan.
19. WITHHOLDING TAX
The Company's obligation to deliver Shares upon exercise of
Options shall be subject to the Participant's satisfaction of all applicable
federal, state and local income and employment tax withholding obligations. The
Committee, in its discretion, may permit the Participant to satisfy the
obligation, in whole or in part, by irrevocably electing to have the Company
withhold Shares, or to deliver to the Company Shares that he already owns,
having a value equal to the amount required to be withheld. The value of Shares
to be withheld, or delivered to the Company, shall be based on the Market Value
of the Shares on the date the amount of tax to be withheld is to be determined.
As an alternative, the Company may retain, or sell without notice, a number of
such Shares sufficient to cover the amount required to be withheld.
20. NO EMPLOYMENT OR OTHER RIGHTS
In no event shall a Participant's eligibility to participate
or participation in the 1997 Plan create or be deemed to create any legal or
equitable right of such Participant or any other party to continue service with
the Company, the Bank, or any Affiliate thereof. No Participant shall have a
right to be granted an Award or, having received an Award, the right to again be
granted an Award. However, a Participant who has been granted an Award may, if
otherwise eligible, be granted an additional Award or Awards.
21. GOVERNING LAW
The 1997 Plan shall be governed by and construed in accordance
with the laws of the State of Maryland, without reference to the choice of law
or conflicts of law provisions thereof, except to the extent that federal law
shall be deemed to apply.
<PAGE>
Exhibit 10.3
COLUMBIA BANCORP
10480 Little Patuxent Parkway
Columbia Maryland 21044
____________, 2000
Incentive Stock Option Agreement
Option Number: _________
STOCK OPTION (the "Option") for a total of _________ shares of common
stock, par value $0.01 per share (the "Common Stock"), of Columbia Bancorp (the
Company"), is hereby granted to ____________ (the "Optionee") at the price set
forth in Section 2, effective as of the "Effective Date," as defined in the Plan
and Agreement to Merge, by and between Company and Suburban Bancshares, Inc.
("Suburban Bancshares"), dated September 28, 1999, as amended (the "Merger
Agreement"). The Option is granted pursuant to the Suburban Bancshares, Inc.
1997 Stock Option Plan, as assumed and amended by the Company (the "Plan"), and
is subject to the terms and provisions of this Agreement and the Plan, the terms
of which are incorporated in this Agreement by reference. The Option is intended
to qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
1. Option Price. The price at which shares of Common Stock may be
purchased under this Agreement is ___________ for each share.
This Option is granted, pursuant to the Merger Agreement, in
substitution for the outstanding incentive stock option (the "Former Option")
granted to the Optionee by the Suburban Bancshares on ______________ (the
"Former Option's Grant Date") under the terms of the Plan as in effect prior to
the Effective Date. The Optionee acknowledges that, pursuant to the provisions
of Section 10(b) of the Plan as in effect immediately prior to the Effective
Date, the Former Option was surrendered and cancelled immediately prior to the
Effective Date to obtain the grant of this Option by the Company in substitution
for such Former Option. The Former Option has no further force or effect after
such surrender and cancellation. The Optionee agrees that the Optionee shall
have no further right of any kind under the Former Option, including the right
to purchase any securities, and further agrees that this Agreement will FOREVER
AND IRREVOCABLY RELEASE AND DISCHARGE Suburban Bancshares and the Company, the
directors and officers thereof, and any and all other persons who may have any
liability with respect to the Former Option, from any and all claims, rights and
liabilities whatsoever relating to the Former Option.
2. Exercise of Option. This Option shall be exercisable as follows:
(i) One hundred percent (100%) of the Option is exercisable as of the
date of this Agreement.
<PAGE>
(ii) Method of Exercise. This Option shall be exercisable by a
written notice by the Optionee which shall:
(a) 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 be registered, his address and Social
Security Number (or if more than one, the names, addresses and
Social Security Numbers of such persons);
(b) contain such representations and agreements as to the
holder's investment intent with respect to such shares of Common
Stock as may be satisfactory to the Company's counsel;
(c) 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 Company, of the right of such
person or persons to exercise the Option; and
(d) be in writing and delivered in person or by certified mail to
the Treasurer the Company.
Payment of the purchase price of any shares with respect to which the
Option is being exercised shall be by cash, Common Stock, or such combination of
cash and Common Stock as the Optionee elects. The certificate or certificates
for shares of Common Stock as to which the Option shall be exercised
shall be registered in the name of the person or persons exercising the Option.
(iii) Restrictions 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 or other law or valid regulation.
As a condition to the Optionee's exercise of this Option, the Company may
require the person exercising this Option to make any representation and
warranty to the Company as may be required by any applicable law or
regulation.
3. Withholding. The Optionee hereby agrees that the exercise of the
Option or any installment thereof will not be effective, and no shares will
become transferable to the Optionee, until the Optionee makes appropriate
arrangements with the Company for such tax withholding as may be required of the
Company under federal, state, or local law on account of such exercise.
4. Non-transferability of Option. This Option may not be transferred in
any manner otherwise than by will or the laws of descent or distribution, or
pursuant to a "qualified domestic relations order" (within the meaning of
Section 414(p) of the Code and the regulations and rulings thereunder). The
terms of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
<PAGE>
5. Term of Option. This Option may not be exercisable for more than ten
years from the Former Option's Grant Date, and may be exercised during such term
only in accordance with the Plan and the terms of this Option.
SUBURBAN BANCSHARES, INC.
1997 STOCK OPTION PLAN COMMITTEE
By: ___________________________________
Print Name: ____________________________
Title: __________________________________
Accepted and Approved:
- ------------------------------------
Print Name: __________________________
Dated: _________________________, 2000
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Columbia Bancorp:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
------------------
KPMG LLP
Baltimore, Maryland
March 21, 2000
<PAGE>
Exhibit 24
COLUMBIA BANCORP
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Columbia Bancorp, a Maryland corporation, constitute and appoint
John M. Bond, Jr. and John A. Scaldara, Jr., or either of them, the true and
lawful agents and attorneys-in-fact of the undersigned with full power and
authority in said agents and attorneys-in-fact, and in any one or both of them,
to sign for the undersigned in their respective names as directors and officers
of Columbia Bancorp, a Registration Statement on Form S-8 (or other appropriate
form) to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and any amendment or supplement to such
Registration Statement relating to the sale of Common Stock under the Suburban
Bancshares, Inc. 1997 Stock Option Plan. We hereby confirm all acts taken by
such agents and attorneys-in-fact, or any one or more of them, as herein
authorized.
Dated: March 16, 2000
Name Title
/s/ John M. Bond, Jr. President, Chief Executive Officer,
- -------------------------------- Treasurer and Director (Principal
John M. Bond, Jr. Executive Officer)
/s/ John A. Scaldara, Jr. Executive Vice President, Chief
- -------------------------------- Financial Officer and Secretary
John A. Scaldara, Jr. (Principal Financial and Accounting
Officer)
/s/ Winfield M. Kelley, Jr. Chairman of the Board and Director
- --------------------------------
Winfield M. Kelly, Jr.
/s/ James R. Moxley, Jr. Vice Chairman of the Board and Director
- --------------------------------
James R. Moxley, Jr.
/s/ Herschel L. Langelthal Chairman of the Executive Committee of
- -------------------------------- the Board and Director
Herschel L. Langenthal
/s/ Anand S. Bhasin Director
- --------------------------------
Anand S. Bhasin
<PAGE>
/s/ Garnett Y. Clark, Jr. Director
- --------------------------------
Garnett Y. Clark, Jr.
/s/ Hugh F.Z. Cole, Jr. Director
- --------------------------------
Hugh F.Z. Cole, Jr.
/s/ William L. Hermann Director
- --------------------------------
William L. Hermann
/s/ Charles C. Holman Director
- --------------------------------
Charles C. Holman
/s/ Harry L. Lundy, Jr. Director
- --------------------------------
Harry L. Lundy, Jr.
/s/ Richard E. McCready Director
- --------------------------------
Richard E. McCready
/s/ Kenneth H. Michael Director
- --------------------------------
Kenneth H. Michael
/s/ James R. Moxley, III Director
- --------------------------------
James R. Moxley, III
/s/ Vincent D. Palumbo Director
- --------------------------------
Vincent D. Palumbo
/s/ Lawrence A. Shulman Director
- --------------------------------
Lawrence A. Shulman
/s/ Maurice M. Simpkins Director
- --------------------------------
Maurice M. Simpkins
/s/ Robert N. Smelkinson Director
- --------------------------------
Robert N. Smelkinson
/s/ Albert W. Turner Director
- --------------------------------
Albert W. Turner
