<PAGE> 1
As filed with the Securities and Exchange Commission on August 5, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________
FIRST FEDERAL CAPITAL CORP.
---------------------------
(Exact name of Registrant as Specified in its Charter)
WISCONSIN 6711 39-1651288
- ------------------------------- ----------------- -----------------
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Identification No.)
Code Number)
605 STATE STREET
LA CROSSE, WISCONSIN 54601
(608) 784-8000
---------------------------------------------------
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
FIRST FEDERAL CAPITAL CORP.
1997 STOCK OPTION AND INCENTIVE PLAN
--------------------------------------------
(Full title of the plan)
THOMAS W. SCHINI, PRESIDENT
FIRST FEDERAL CAPITAL CORP.
605 STATE STREET
LA CROSSE, WISCONSIN 54601
(608) 784-8000
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(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
Copies to:
TERESA M. LEVY, ESQ.
MICHAEL BEST & FRIEDRICH
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WISCONSIN 53202
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED(1) REGISTERED(2) PER SHARE(3) OFFERING FEE(3)
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.10 par value 735,000 $24.25 $17,823,750 $5,401.14
per share
- -------------------------------------------------------------------------------
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the First Federal Capital Corp. 1997 Stock Option and Incentive Plan (the
"1997 Option Plan"), as the result of a stock split, stock dividend or
similar adjustment of the outstanding Common Stock of First Federal
Capital Corp. pursuant to Rule 416(a).
(2) Represents 735,000 shares reserved for issuance under the 1997 Option
Plan.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1). The proposed maximum offering price per share
is based upon the average of the high and low prices for the shares of
Common Stock as reported on the NASDAQ National Market System on July 31,
1997.
_______________________________
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act, and 17
C.F.R. Section 230.462.
Total Number of Pages: 6
Exhibit Index on Page 6
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 & 2. PLAN INFORMATION AND REGISTRANT INFORMATION AND EMPLOYEE PLAN
ANNUAL INFORMATION.
The information required by Items 1 & 2 is included in documents
sent or given to participants in the First Federal Capital Corp. 1997 Stock
Option and Incentive Plan (the "1997 Stock Plan") pursuant to Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"). Such documents
are not being filed with the Commission, but constitute (together with the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act. First Federal Capital Corp. (the "Registrant" or
"Company") shall provide a written statement to participants in the 1997 Stock
Plan advising them of the availability without charge, upon written or oral
request, of the documents incorporated by reference in Item 3 of Part II of the
Registration Statement and of other documents required to be delivered to
employees pursuant to Rule 428(b), and shall include the address and telephone
number to which the request is to be directed.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Commission
are incorporated herein by reference and made a part hereof:
(a) The Company's latest Annual Report on Form 10-K for the year ended
December 31, 1996, which includes the consolidated financial
statements of the Company as of December 31, 1996, 1995 and 1994,
the related consolidated statements of operations, equity and cash
flows for each of the three years in the period ended December 31,
1996, and the consolidated statements of financial condition at
December 31, 1996 and 1995, together with the related notes and
Report of Independent Auditors of the Company (dated January 24,
1997).
(b) All other reports filed pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the
last fiscal year for which financial statements were included in
the report referred to in (a) above.
(c) The Company's Proxy Statement relating to the Company's Annual
Meeting of Shareholders held on April 23, 1997, filed with the
Commission on March 12, 1997.
(d) The description of the Company's Common Stock and the Company's
Series A Junior Participating Preferred Stock and Preferred Stock
Purchase Rights contained in the Company's Prospectus, dated
October 18, 1995, and included in the Company's Registration
Statement on Form S-4 (File No. 33-98298) which was declared
effective by the Commission on October 18, 1995.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Company
is required to indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if such person was a party
because he or she was a director or officer of the Company. In all other
cases, the Company is required by Section 180.0851(2) to indemnify a director
or officer against liability incurred in a proceeding to which such a person
was a party because he or she was a director or officer of the Company, unless
it is determined that he or she breached or failed to perform a duty owed to
the Company and the breach or failure to perform constitutes: (i) a willful
failure to deal fairly with the Company or its shareholders in connection with
a matter in which the director or officer has a material conflict of interest,
(ii) a violation of criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was unlawful; (iii) a transaction from
which the director or officer derived an improper personal profit, or (iv)
willful misconduct. Section 180.0858(1) provides that, subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a director or
officer may have under the Company's articles of incorporation, bylaws, a
written agreement or a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance to the extent required to be permitted
under Sections 180.0850 to 180.0858 of the WBCL, for any liability incurred in
connection with a proceeding involving a federal or state statute, rule or
regulation regulating the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or any
person asserting rights on behalf of the corporation or its shareholders, for
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Under Article VI of the Company's Bylaws, directors and officers
are indemnified against liability, in both derivative and nonderivative suits,
which they may incur in their capacities as such, subject to certain
determinations by the Board of Directors, independent legal counsel or the
shareholders that the applicable standards of conduct have been met. The scope
of such indemnification is substantially the same as permitted and described in
Sections 180.0850 to 180.0858 of the WBCL.
Section 180.0833 of the WBCL provides that with certain
exceptions, directors of the Company against whom claims are asserted with
respect to the declaration of improper dividends or distributions to
shareholders or certain other improper acts which they approved are entitled to
contribution from other directors who approved such actions and from
shareholders who knowingly accepted an improper dividend or distribution, as
provided therein.
The directors and officers of the Company are included in the
directors' and officers' liability insurance policy applicable to First Federal
Savings Bank LaCrosse-Madison, the Company's wholly-owned federally-chartered
stock savings bank subsidiary ("First Federal Savings Bank"). The Company has
not obtained substitute or additional directors' and officers' liability
coverage for liability which may be incurred in their capacity as such. First
Federal Savings Bank's insurance policy provides that, subject to the
applicable liability limits and retention amounts, the insurer will reimburse
directors and officers of First Federal Savings Bank for a "loss" (as defined
in the policy) sustained by a director or officer resulting from any claim made
against them for a "wrongful
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<PAGE> 5
act" (as defined in the policy). The policy also provides that, subject to the
applicable liability limits and retention amounts, the insurer will reimburse
First Federal Savings Bank for a loss for which First Federal Savings Bank has
lawfully indemnified (or is required or permitted by law to indemnify) a
director or officer resulting from any such claim. Subject to certain
exclusions set forth in the policy, "wrongful act" is defined to mean any
actual or alleged error, misstatement, misleading statement, act or omission,
or neglect or breach of duty by the directors or officers in the discharge of
their duties solely in their capacities as such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the
Exhibit Index on page 6 of this Registration Statement, which Exhibit Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the 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) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to
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<PAGE> 6
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.
(5) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of La Crosse, State of Wisconsin on July 22, 1997.
FIRST FEDERAL CAPITAL CORP.
By: /s/ Thomas W. Schini
---------------------------
Thomas W. Schini, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas W. Schini his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including pre-effective and post-effective amendments)
to this registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing necessary and
requisite to be done, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Thomas W. Schini President, Chairman of the |
- ------------------------- Board, Chief Executive Officer |
Thomas W. Schini and Director |
|
|
/s/ Jack C. Rusch Chief Financial Officer |
- ------------------------- (Principal Financial Officer) |
Jack C. Rusch |
|
/s/ Michael W. Dosland Controller (Principal Accounting |
- ------------------------- Officer) |
Michael W. Dosland |
|
/s/ Dale A. Nordeen Vice Chairman of the Board |
- ------------------------- and Director |
Dale A. Nordeen |
|
/s/ Henry C. Funk Director |
- ------------------------- |
Henry C. Funk } July 22, 1997
|
/s/ John F. Leinfelder Director |
- ------------------------- |
John F. Leinfelder |
|
/s/ Richard T. Lommen Director |
- ------------------------- |
Richard T. Lommen |
|
/s/ Phillip J. Quillin Director |
- ------------------------- |
Phillip J. Quillin |
|
/s/ Don P. Rundle Director |
- ------------------------- |
Don P. Rundle |
|
/s/ Patrick J. Luby Director |
- ------------------------- |
Patrick J. Luby |
|
/s/ David C. Mebane Director |
- ------------------------- |
David C. Mebane |
|
/s/ Marjorie A. Davenport Director |
- ------------------------- |
Marjorie A. Davenport |
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EXHIBIT INDEX
REGULATION S-K
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- -------------- -----------------------
Exhibit 4 First Federal Savings Bank 1997 Stock Option and Incentive Plan
Exhibit 5 Opinion of Michael Best & Friedrich
Exhibit 23.1 Consent of Ernst & Young LLP
Exhibit 23.2 Consent of Michael Best & Friedrich (included in Exhibit 5)
Exhibit 24 Power of Attorney (included as part of signature page)
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<PAGE> 1
FIRST FEDERAL CAPITAL CORP.
1997 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE.
The purpose of the First Federal Capital Corp. (the "Company") 1997 Stock
Option and Incentive Plan (the "Plan") is to advance the interests of the
Company and its shareholders by providing those key employees of the Company
and its Affiliates, including First Federal Savings Bank of La Crosse-Madison
(the "Bank"), upon whose judgment, initiative and efforts the successful
conduct of the business of the Company and its Affiliates largely depends, with
additional incentive to perform in a superior manner. A purpose of the Plan
also is to attract and retain personnel of experience and ability to the
service of the Company and its Affiliates, and to reward such individuals for
achievement of corporate and individual performance goals.
2. DEFINITIONS.
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member, or (ii) an unincorporated trade or business
which is under common control with the Company as determined in accordance with
Section 414(c) of the Code and the regulations issued thereunder. For purposes
hereof, a "controlled group of corporations" shall mean a controlled group of
corporations as defined in Section 1563(a) of the Code determined without
regard to Section 1563(a)(4) and (e)(3)(C).
(b) "Award" means a Stock Grant or a grant of Non-statutory Stock Options
or Incentive Stock Options pursuant to the provisions of this Plan.
(c) "Board of Directors" or "Board" means the board of directors of the
Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Change in Control" of the Company means a change in control of a
nature that: (i) would be required to be reported in response to Item 1 of the
current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Exchange Act; or (ii) results in a change in control
of the Bank or the Company within the meaning of the Home Owners Loan Act of
1933 and the Rules and Regulations promulgated by the Office of Thrift
Supervision (or its predecessor agency), as in effect on the effective date of
this Plan; or (iii) without limitation shall be deemed to have occurred at such
time as (a) any "person" (as the term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Bank or the Company representing 25% or more of the Bank's or the Company's
outstanding securities ordinarily having the right to vote in the election of
<PAGE> 2
directors except for any securities purchased by the Bank's employee stock
benefit plans; or (b) individuals who constitute the Board on the date hereof
(the "Incumbent Board"), cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's shareholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause (b),
considered as though he or she were a member of the Incumbent Board; or (c) a
plan of reorganization, merger, consolidation, sale of all or substantially all
the assets of the Bank or the Company or similar transaction in which the Bank
or Company is not the surviving institution which is approved by shareholders
and becomes effective; or (d) a proxy statement soliciting proxies from
shareholders of the Company, by someone other than the current management of
the Company, seeking shareholder approval of a plan of reorganization, merger
or consolidation of the Company or the Bank or similar transaction with one or
more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Company shall be distributed and shareholders approve the action disclosed in
the proxy materials.
(e) "Committee" means a committee consisting of two or more Non-Employee
Directors appointed by the Board pursuant to Section 3 hereof. "Non-Employee
Director," as defined in Rule 16b-3 promulgated by the SEC under the Exchange
Act, means a director who (i) is not currently an officer or otherwise employed
by the Company or the Bank, or a parent or other subsidiary of the Company,
(ii) does not receive compensation for consulting services or in any other
capacity from the Company or the Bank in excess of $60,000 in any one year,
(iii) does not possess an interest in and is not engaged in business
relationships required to be reported under Items 404(a) or 404(b) of
Regulation S-K promulgated under the Exchange Act, and (iv) is an Outside
Director as defined in Treas. Reg. 1.162-27 promulgated under the Code.
(f) "Common Stock" means the Common Stock of the Company, $.10 par value
per share.
(g) "Date of Grant" means the date an Award is effective pursuant to the
terms hereof.
(h) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an Employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or
approved by the Committee must advise the Committee that it is either not
possible to determine when
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<PAGE> 3
such Disability will terminate or that it appears probable that such Disability
will be permanent during the remainder of said participant's lifetime.
(i) "Employee" means any person who is currently employed by the Company
or any Affiliate.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(k) "Fair Market Value" means, when used in connection with the Common
Stock on a certain date, the closing price as reported by the National
Association of Securities Dealers Automated Quotation System (as published by
the Wall Street Journal, if published) on such date or if the Common Stock was
not traded on such date, on the next preceding day on which the Common Stock
was traded thereon or the last previous date on which a sale is reported.
(l) "Incentive Stock Option" means an Option granted by the Committee to a
Participant, which Option is designed as an Incentive Stock Option pursuant to
Section 9 of this Plan.
(m) "Non-statutory Stock Option" means an Option granted to a Participant
and which is not an Incentive Stock Option.
(n) "Option" means an Award granted under Section 8 or Section 9 of this
Plan.
(o) "Participant" means an Employee of the Company or its Affiliates
chosen by the Committee to participate in the Plan.
(p) "Plan Year(s)" means a calendar year or years commencing on or after
January 1, 1997.
(q) "Retirement" means a termination of employment which constitutes a
normal, early or late retirement under the First Federal Savings Bank
LaCrosse-Madison Pension Plan.
(r) "SEC" means the Securities and Exchange Commission.
(s) "Stock Grant" means a grant of shares of Common Stock accompanied by
such restrictions as may be determined by the Committee under Section 7 of this
Plan.
(t) "Termination for Cause" means the termination for personal dishonesty,
incompetence, willful misconduct, any breach of fiduciary duty involving
personal
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<PAGE> 4
profit, intentional failure to perform stated duties, or the willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order or the material breach of any
provisions of an Employee's employment contract.
(u) "Threatened Change in Control" shall mean any set of circumstances
which in the opinion of the Board, as expressed through a resolution, poses a
real, substantial and immediate possibility of leading to a Change in Control.
3. ADMINISTRATION.
3.1 General. The Plan shall be administered by the Committee. The
members of the Committee shall be appointed by the Board. The Committee shall
act by vote or written consent of a majority of its members. The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it sees necessary for the proper administration of the Plan and
to make whatever determinations and interpretations in connection with the Plan
it deems necessary or advisable with respect to Participants. All
determinations and interpretations made by the Committee shall be binding and
conclusive on such Participants and on their legal representatives and
beneficiaries. In determining the number of shares of Common Stock with
respect to which Options and Stock Grants are exercisable, fractional shares
will be rounded up to the nearest whole number if the fraction is 0.5 or
higher, and down if it less.
3.2 Limitation on Liability. No member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan,
any rule, regulation or procedure adopted by it pursuant thereto or any Awards
granted under it. If a member of the Committee is a party or is threatened to
made a party to any threatened, pending or contemplated action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of anything done or not done by him or her in such capacity under or with
respect to the Plan, the Company shall indemnify such member against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner reasonably believed
to be in the best interests of the Company, and its Affiliates and, with
respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
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<PAGE> 5
4. TYPES OF AWARDS.
Awards under the Plan may be granted in any one or a combination of:
(a) Stock Grants;
(b) Non-statutory Stock Options;
(c) Incentive Stock Options;
as defined in paragraphs 7, 8 and 9 of the Plan.
The Committee shall, in its discretion, determine from time to time which
Employees will be granted Awards under the Plan, the number of shares of Common
Stock subject to each Award, whether each Option will be an Incentive Stock
Option or a Non-statutory Stock Option, the exercise price of an Option and the
restrictions, if any, which will be applicable to each Stock Grant. In making
all such determinations, the Committee shall take into account the duties,
responsibilities and performance of each respective Employee, his or her
present and potential contributions to the growth and success of the Company,
his salary and such other factors as the Committee shall deem relevant to
accomplishing the purposes of the Plan.
No optionee shall have any voting or dividend rights or other rights of a
shareholder in respect of any shares of Common Stock covered by an Option prior
to the time that the Participant's name is recorded on the Company's
shareholder records as the holder of record of such shares acquired pursuant to
the exercise of an Option.
5. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 14, the maximum number of
shares reserved for Stock Grants and for purchase pursuant to the exercise of
Options granted under the Plan is 490,000 shares of Common Stock.
Of the total shares of Common Stock available under the Plan, Options to
purchase no more than 122,500 shares of Common Stock shall be issued to any
Participant in any period of three (3) calendar years.
The shares of Common Stock to be subject to the Plan may be either
authorized but unissued shares or shares previously issued and reacquired by
the Company. To the extent that Options are granted and Stock Grants are made
under the Plan, the shares underlying such Options and Stock Grants will be
unavailable for future grants under the Plan except that, to the extent that
the Options and Stock Grants granted under the Plan terminate, expire or are
canceled without having been exercised, new Awards may be made with respect to
such shares.
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<PAGE> 6
6. ELIGIBILITY.
Officers and other Employees (including Employees who also are directors
of the Company or its Affiliates) shall be eligible to receive Stock Grants,
Incentive Stock Options and Non-statutory Stock Options under the Plan. Awards
may not be granted to individuals who are not Employees.
7. STOCK GRANTS.
7.1 General Terms. Each Stock Grant may be accompanied by such
restrictions, or may be made without any restrictions, as may be determined in
the discretion of the Committee. Such restrictions may include, without
limitation, requirements that the Participant remain in the continuous
employment of the Company or its Affiliates for a specified period of time, or
that the Participant meet designated individual performance objectives, or that
the Company and/or one or more of its Affiliates meet designated performance
objectives.
7.2 Issuance Procedures. A stock certificate representing the number of
shares of Common Stock covered by a Stock Grant shall be registered in the
Participant's name and may be held by the Participant; provided however, if a
Stock Grant is subject to certain restrictions, the shares of Common Stock
covered by such Stock Grant shall be registered in the Participant's name and
held in custody by the Company. A Participant who has been awarded a Stock
Grant shall have all rights and privileges of a shareholder of the Company as
to the shares of Common Stock covered by a Stock Grant, including the right to
receive dividends and the right to vote such shares, provided that (a) a
Participant shall not be entitled to delivery of a certificate evidencing such
shares or any certificate evidencing stock dividends until the expiration or
satisfaction of any applicable restrictions, (b) none of the shares of Common
Stock covered by the Stock Grant may be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of prior to the expiration or satisfaction of
any applicable restrictions, and (c) all of the shares of Common Stock covered
by a Stock Grant shall be forfeited and all rights of a Participant who has
been awarded such Stock Grant to such shares shall terminate without further
obligation on the part of the Company in the event that any applicable
restrictions do not expire or are not satisfied. Upon forfeiture of shares of
Common Stock, such shares shall be transferred to the Company without further
action by the Participant. Upon the expiration or satisfaction of any
applicable restrictions, whether in the ordinary course or under circumstances
set forth in Section 7.3, certificates evidencing shares of Common Stock
subject to the related Stock Grant shall be delivered to the Participant, or
the Participant's beneficiary or estate, as the case may be, free of all such
restrictions.
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7.3 Accelerated Vesting.
(a) Death, Disability or Retirement. Unless the Committee shall
specifically state otherwise at the time a Stock Grant is awarded, all Stock
Grants shall become vested in full and all related restrictions shall terminate
and expire on the date that a recipient of a Stock Grant terminates his
employment with the Company or its Affiliates due to death, Disability or
Retirement.
(b) Change in Control. Notwithstanding anything to the contrary herein,
all outstanding Stock Grants shall become immediately vested and all related
restrictions shall terminate and expire in the event there is an actual, or
Threatened, Change in Control of the Company.
8. NON-STATUTORY STOCK OPTIONS.
8.1 Grant of Non-statutory Stock Options.
(a) Grants to Employees. The Committee may, from time to time, grant
Non-statutory Stock Options to Employees and, upon such terms and conditions as
the Committee may determine, grant Non-statutory Stock Options in exchange for
and upon surrender of previously granted Awards under this Plan.
(b) Terms of Non-Statutory Options. Non-statutory Stock Options granted
under this Plan are subject to the following terms and conditions:
(i) Price. The purchase price per share of Common Stock deliverable
upon the exercise of each Non-statutory Stock Option shall be determined on
the date the option is granted. Such purchase price shall be the Fair Market
Value of the Company's Common Stock on the Date of Grant or such greater amount
as determined by the Committee. Shares may be purchased only upon full payment
of the purchase price. Payment of the purchase price may be made, in whole or
in part, through the surrender of shares of the Common Stock of the Company at
the Fair Market Value of such shares on the date of surrender determined in the
manner described in Section 2(k) of the Plan.
(ii) Terms of Options. The term during which each Non-statutory Stock
Option may be exercised shall be ten years from the Date of Grant, or such
shorter period determined by the Committee. The Committee shall determine with
respect to Employees, the date on which each Non-statutory Stock Option shall
become exercisable and may provide that a Non-statutory Stock Option shall
become exercisable in installments. The shares comprising each installment may
be purchased in whole or in part at any time after such installment becomes
purchasable. The Committee may, in its sole discretion, accelerate the time at
which any Non-statutory Stock Option granted to an Employee may be exercised in
whole or in part.
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Notwithstanding the above, in the event of a Change in Control of the
Company or a Threatened Change in Control, all Non-statutory Stock Options
shall become immediately exercisable.
(iii) Termination of Service.
Upon the termination of a Participant's service for any reason other
than death, Disability, Retirement or Termination for Cause, the Participant's
Non-statutory Stock Options shall be exercisable only as to those shares which
were immediately purchasable by the Participant at the date of termination and
only for a period of three months following termination.
In the event of Termination for Cause, all rights under the
Participant's Non-statutory Stock Options shall expire upon termination.
In the event of the death, Disability or Retirement of any Participant
or a Change in Control, all Non-statutory Stock Options held by the
Participant, whether or not exercisable at such time, shall be exercisable by
the Participant or his legal representatives or beneficiaries of the
Participant for one year.
The Committee, at the time of grant or thereafter, may extend the
period of Non-statutory Stock Option exercise on a Participant's termination of
service to a period not exceeding 5 years, provided that in no event shall the
period extend beyond the expiration of the Non-statutory Stock Option term.
9. INCENTIVE STOCK OPTIONS.
9.1 Grant of Incentive Stock Options.
The Committee may, from time to time, grant Incentive Stock Options to
Employees. Incentive Stock Options granted pursuant to the Plan shall be
subject to the following terms and conditions:
(a) Price. The purchase price per share of Common Stock deliverable upon
the exercise of each Incentive Stock Option shall be not less than 100% of the
Fair Market Value of the Company's Common Stock on the Date of Grant. However,
if a Participant owns Common Stock representing more than 10% of the total
combined voting power of all classes of Common Stock of the Company (or under
Section 425(d) of the Code is deemed to own Common Stock representing more than
10% of the total combined voting power of all such classes of Common Stock),
the purchase price per share of Common Stock deliverable upon the exercise of
each Incentive Stock Option shall not be less than 110% of the Fair Market
Value of the Company's Common Stock on the Date of Grant. Payment of the
purchase price may be made, in whole or in part, through the surrender of
shares of the Common Stock of the
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<PAGE> 9
Company at the Fair Market Value of such shares on the date of surrender
determined in the manner described in Section 2(k).
(b) Amounts of Options. Incentive Stock Options may be granted to any
Employee in such amounts as determined by the Committee. In the case of an
option intended to qualify as an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the time the option is granted) of the Common
Stock with respect to which Incentive Stock Options granted are exercisable for
the first time by the Participant during any calendar year (under all plans of
the Participant's employer corporation and its parent and subsidiary
corporations) shall not exceed $100,000. The provisions of this Section 9.1(b)
shall be construed and applied in accordance with Section 422(d) of the Code
and the regulations, if any, promulgated thereunder. To the extent an award
under this Section 9.1 exceeds this $100,000 limit, the portion of the award in
excess of such limit shall be deemed a Non-statutory Stock Option.
(c) Terms of Options. The term during which each Incentive Stock Option
may be exercised shall be determined by the Committee, but in no event shall an
Incentive Stock Option be exercisable in whole or in part more than ten years
from the Date of Grant. If at the time an Incentive Stock Option is granted to
an Employee, the Employee owns Common Stock representing more than 10% of the
total combined voting power of the Company (or, under Section 425(d) of the
Code, is deemed to own Common Stock representing more than 10% of the total
combined voting power of all such classes of Common Stock), the Incentive Stock
Option granted to such Employee shall not be exercisable after the expiration
of five years from the Date of Grant.
No Incentive Stock Option granted under this Plan is transferable except
by will or the laws of descent and distribution and is exercisable in his
lifetime only by the Employee to whom it is granted.
The Committee shall determine the date on which each Incentive Stock
Option shall become exercisable and may provide that an Incentive Stock Option
shall become exercisable in installments. The shares comprising each
installment may be purchased in whole or in part at any time after such
installment becomes purchasable, provided that the amount able to be first
exercised in a given year is consistent with the terms of Section 422 of the
Code. The Committee may, in its sole discretion, accelerate the time at which
any Incentive Stock Option may be exercised in whole or in part, provided that
it is consistent with the terms of Section 422 of the Code.
Notwithstanding the above, in the event of a Change in Control of the
Company, or Threatened Change in Control, all Incentive Stock Options shall
become immediately exercisable.
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<PAGE> 10
(d) Termination of Service. Upon the termination of a Participant's
service for any reason other than death, Disability, Retirement, Termination
for Cause or Change in Control, the Incentive Stock Options shall be
exercisable only as to those shares which were immediately purchasable by the
Participant at the date of termination and only for a period of three months
following termination.
In the event of Termination for Cause, all rights under the Participant's
Incentive Stock Options shall expire upon termination.
In the event of death, Disability or Retirement of any Employee, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such time, shall be exercisable by the Participant or the Participant's legal
representatives or beneficiaries for one year following the date of the
Participant's death, Retirement or cessation of employment due to Disability;
provided, however, that such option shall not be eligible for treatment as an
Incentive Stock Option in the event such option is exercised more than three
months following the date of the Participant's cessation of employment.
Upon termination of the Participant's service due to a Change in Control,
all Incentive Stock Options held by such Participant, whether or not
exercisable at such time, shall be exercisable for a period of one year
following the date of Participant's cessation of employment; provided however,
that such option shall not be eligible for treatment as an Incentive Stock
Option in the event such option is exercised more than three months following
the date of the Participant's cessation of employment.
The Committee, at the time of grant or thereafter, may extend the period
of Incentive Stock Option exercise on a Participant's termination of service to
a period not exceeding 5 years, provided, however, that such option shall not
be eligible for treatment as an Incentive Stock Option in the event such option
is exercised more than three months following the date of the Participant's
cessation of employment. Notwithstanding anything to the contrary contained
herein, in no event shall the exercise period extend beyond the expiration of
the Incentive Stock Option term.
(e) Compliance with Code. The options granted under this Section 9 of the
Plan are intended to qualify as incentive stock options within the meaning of
Section 422 of the Code, but the Company makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code.
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10. SURRENDER OF OPTIONS TO THE COMPANY.
In the event of a Participant's termination of employment, the Participant
(or the Participant's personal representative(s), heir(s), or devisee(s)) may,
in a form acceptable to the Committee, make application to surrender all or
part of options held by such Participant in exchange for a cash payment from
the Company of an amount equal to the difference between the Fair Market Value
of the Common Stock on the date of termination and the exercise price per
share of the option on the Date of Grant. Whether the Committee accepts such
application or determines to make payment, in whole or part, is within its
absolute and sole discretion, it being expressly understood that the Committee
is under no obligation to any Participant whatsoever to make such payments. In
the event that the Committee accepts such application and the Company
determines to make payment, such payment shall be in lieu of the exercise of
the underlying option and such option shall cease to be exercisable.
11. RIGHTS OF A SHAREHOLDER; LIMITED TRANSFERABILITY.
No Participant shall have any rights as a shareholder with respect to any
shares covered by a Non-statutory and/or Incentive Stock Option until the date
of issuance of a stock certificate for such shares. Nothing in this Plan or in
any Award granted confers on any person any right to continue in the employ of
the Company or its Affiliates or to continue to perform services for the
Company or its Affiliates or interferes in any way with the right of the
Company or its Affiliates to terminate a Participant's services as an officer
or other Employee at any time.
No Incentive Stock Option granted under this Plan is transferable except
by will or the laws of descent and distribution and is exercisable in his or
her lifetime only by the Participant to whom it is granted.
Non-statutory Stock Options granted hereunder may be exercised only during
a Participant's lifetime by the Participant, the Participant's guardian or
legal representative or by a permissible transferee. Non-statutory Stock
Options shall be transferable by Participants pursuant to the laws of descent
and distribution upon a Participant's death, and during a Participant's
lifetime, Non-statutory Stock Options shall be transferable by Participants to
members of their immediate family, trusts for the benefit of members of their
immediate family, and charitable institutions ("permissible transferee") to the
extent permitted under Section 16 of the Exchange Act and subject to federal
and state securities laws. The term "immediate family" shall mean any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, sister-in-law, or brother-in-law and
shall include adoptive relationships.
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The Committee shall have the authority to establish rules and regulations
specifically governing the transfer of Options granted under this Plan as it
deems necessary and advisable.
12. AGREEMENT WITH GRANTEES.
Each Award of Options will be evidenced by a written agreement, executed
by the Participant and the Company or its Affiliates which describes the
conditions for receiving the Options including the date of Option Award, the
purchase price if any, applicable periods, and any other terms and conditions
as may be required by applicable securities law.
The proper officers of the Company shall advise each Participant who is
awarded a Stock Grant, in writing, of the number of shares to which it pertains
and the terms and conditions and any restrictions applicable to such Stock
Grant; provided they are not inconsistent with the terms, conditions and
provisions of the Plan.
13. DESIGNATION OF BENEFICIARY.
A Participant may, with the consent of the Committee, designate a person
or persons to receive, in the event of death, any Option Award to which the
Participant would then be entitled. Such designation will be made upon forms
supplied by and delivered to the Company and may be revoked in writing. If a
Participant fails effectively to designate a beneficiary, then the
Participant's estate will be deemed to be the beneficiary.
14. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding shares of Common Stock of
the Company by reason of any stock dividend or split, recapitalization, merger,
consolidation, spin-off, reorganization, combination or exchange of shares, or
other similar corporate change, or other increase or decrease in such shares
without receipt or payment of consideration by the Company, the Committee will
make such adjustments to previously granted Awards, to prevent dilution or
enlargement of the rights of the Participant, including any or all of the
following:
(a) adjustments in the aggregate number or kind of shares of Common Stock
which may be awarded under the Plan;
(b) adjustments in the aggregate number or kind of shares of Common Stock
covered by Awards already made under the Plan;
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<PAGE> 13
(c) adjustments in the purchase price of outstanding Incentive and/or
Non-statutory Stock Options.
No such adjustments may, however, materially change the value of benefits
available to a Participant under a previously granted Award.
15. WITHHOLDING.
There may be deducted from each distribution of cash and/or Common Stock
under the Plan the amount of tax required by any governmental authority to be
withheld.
16. AMENDMENT OF THE PLAN.
The Board of Directors may at any time, and from time to time, terminate,
modify or amend the Plan in any respect; provided however, that Sections 7.1,
8.1 and 9.1 governing grants shall not be amended more than once every six
months other than to comport with the Code or the Employee Retirement Income
Security Act of 1974, as amended, if applicable.
The Board may determine that shareholder approval of any amendment to this
Plan may be advisable for any reason, including but not limited to, for the
purpose of obtaining or retaining any statutory or regulatory benefits under
tax, securities or other laws or satisfying applicable stock exchange listing
requirements.
Such termination, modification or amendment may not affect the rights of a
Participant under an outstanding Award, except the Board may, prior to a Change
in Control, terminate the Plan in connection with a Change in Control and make
a cash payment to all Participants equal to the difference between the Fair
Market Value of the Common Stock on the date of the Change in Control and the
exercise price per share of an Option on the Date of Grant.
17. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as of the date the Plan is approved by
shareholders at an annual or special meeting of shareholders (the "Effective
Date"). The Plan also shall be presented to shareholders of the Company for
ratification for purposes of: (i) satisfying one of the requirements of Section
422 of the Code governing the tax treatment for Incentive Stock Options; and
(ii) maintaining listing on the NASDAQ National Market System.
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18. TERMINATION OF THE PLAN.
No Awards under the Plan shall be granted more than ten (10) years after
the Effective Date of the Plan. The Board of Directors has the right to
suspend or terminate the Plan at any time. No termination shall, without the
consent of a Participant, adversely affect such individual's rights under a
previously granted award.
19. APPLICABLE LAW.
The Plan will be administered in accordance with the laws of the State of
Wisconsin to the extent not preempted by Federal law as now or hereafter in
effect.
20. COMPLIANCE WITH SECTION 16.
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
- --------------------------- ------------------------------
Date Adopted (Signature)
Title
- --------------------------- ------------------------------
Date Approved by Secretary
Shareholders
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<PAGE> 1
[LETTERHEAD OF MICHAEL BEST & FRIEDRICH]
July 31, 1997
First Federal Capital Corp.
605 State Street
P.O. Box 1868
LaCrosse, Wisconsin 54602-1868
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
You have requested our opinion as to the legality of 735,000 shares of
common stock, $0.10 par value per share ("Common Stock") of First Federal
Capital Corp. (the "Company") to be issued under the Company's 1997 Stock
Option and Incentive Plan (the "1997 Incentive Plan") and being registered with
the Securities and Exchange Commission pursuant to a Registration Statement on
Form S-8. As your counsel, we have examined such records and other documents
as we deemed necessary for the purposes of this opinion and considered such
questions of law as we believe to be involved. Based upon such examination and
consideration, it is our opinion that the shares of Common Stock will, when
issued in accordance with the provisions of the 1997 Incentive Plan, be validly
issued, fully paid and nonassessable shares of Common Stock of the Company
(except as may be provided in Section 180.0622(2)(b) of the Wisconsin Statutes,
as judicially interpreted, which may require further assessment for unpaid
wages to employees under certain circumstances).
We give our consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 and the use of our name in connection
therewith.
Very truly yours,
MICHAEL BEST & FRIEDRICH LLP
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the First Federal Capital Corp 1997 Stock Option and
Incentive Plan of our report, dated January 24, 1997, with respect to the
consolidated financial statements and schedules of First Federal Capital Corp
included in its Annual Report on Form 10-K for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
July 15, 1997
Milwaukee, Wisconsin /s/ ERNST & YOUNG LLP
