<PAGE>
Registration No. 333-__________
As filed with the Securities and Exchange Commission on September 30, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
ARCADIA FINANCIAL LTD.
(Exact name of registrant as specified in its charter)
Minnesota 41-1664848
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
--------------------
7825 Washington Avenue South
Minneapolis, Minnesota 55439-2444
(Address, including zip code,
of registrant's principal executive offices)
--------------------
Arcadia Financial Ltd.
1999 Omnibus Stock Plan
(Full title of the plan)
--------------------
Richard A. Greenawalt
Arcadia Financial Ltd.
7825 Washington Avenue South
Minneapolis, Minnesota 55439-2444
(612) 942-9880
(Name, address and telephone number,
including area code, of agent for service of process)
--------------------
Copy to:
William B. Payne, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minnesota, Minnesota 55402
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Amount to be offering price per aggregate offering Amount of
Title of securities to be registered registered share (1) price registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, $.01 par value 5,000,000 $4.63 $23,150,000.00 $6,436.00
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low
prices for shares of the Registrant's Common Stock on September 28, 1999,
as reported by the New York Stock Exchange.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant incorporates herein by reference the following documents
or portions of documents, as of their respective dates as filed with the
Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999;
(c) The Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1999;
(d) The Registrant's Current Report on Form 8-K
dated March 1, 1999, filed March 3, 1999;
(e) The Registrant's Current Report on Form 8-K
dated March 5, 1999, filed March 8, 1999; and
(f) The Registrant's Current Report on Form 8-K
dated May 21, 1999, filed May 21, 1999;
(g) The Registrant's Current Report on Form 8-K
dated June 7, 1999, filed June 16, 1999; and
(h) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form
8-A/A-1 File No. 1-14276 and the description of the Registrant's
Preferred Stock Purchase Rights contained in the Registrant's
Registration Statement on Form 8-A/A-1 File No. 1-12427.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes provides that a corporation
shall indemnify any person made or threatened to be made a party to a proceeding
by reason of the former or present official capacity of such person against
judgments, penalties, fines (including, without limitation, excise taxes
assessed against such person with respect to any employee benefit plan),
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if,
with respect to the acts or omissions of such person complained of in the
proceeding, such person (1) has not been indemnified therefor by another
organization or employee benefit plan for the same judgments, penalties or
fines; (2) acted in good faith; (3) received no improper personal benefit and
Section 302A.255 (with respect to director conflicts of interest), if
applicable, has been satisfied; (4) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and (5) in the case of
acts or omissions in such person's official capacity for the corporation,
reasonably believed that the conduct was in the best interests of the
corporation, or in the case of acts or omissions in such person's official
capacity for other affiliated organizations, reasonably believed that the
conduct was not opposed to the best interests of the corporation. Section
302A.521 also requires payment by a corporation, upon written request, of
reasonable expenses in advance of final disposition of the proceeding in certain
instances. A decision as to required indemnification is made by a disinterested
majority of the Board of Directors present at a meeting at which a disinterested
quorum is present, or by a designated committee of the Board, by special legal
counsel, by the shareholders or by a court.
Article 6 of the Registrant's Restated Bylaws, as amended, provides that
directors, officers, employees and agents, past or present, of the Registrant,
and persons serving as such of another corporation or entity at the request of
the Registrant, shall be indemnified by the Registrant for such expenses and
liabilities, in such manner, under such circumstances, and to such extent as
permitted under Minnesota Statutes Section 302A.521.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Arcadia Financial Ltd. 1999 Omnibus Stock Plan (filed
herewith)
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (included on signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
II-2
<PAGE>
(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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs A(1)(i) and A(1)(ii) of this section 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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
C. 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
Securities Act of 1933 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 other
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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Minneapolis, State of Minnesota, on the 28th day of
September, 1999.
ARCADIA FINANCIAL LTD.
By /s/Richard A. Greenawalt
-------------------------------
Richard A. Greenawalt
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard A. Greenawalt and John A. Witham,
or either of them (with full power to act alone), as his true and lawful
attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including 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 attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Richard A. Greenawalt Chief Executive Officer and Director September 28, 1999
- -------------------------------- (Principal Executive Officer)
Richard A. Greenawalt
/s/Robert A. Marshall President and Director September 28, 1999
- --------------------------------
Robert A. Marshall
/s/John A. Witham Executive Vice President and Chief Financial September 28, 1999
- -------------------------------- Officer (Principal Financial Officer)
John A. Witham
/s/Brian S. Anderson Senior Vice President and Controller September 28, 1999
- -------------------------------- (Principal Accounting Officer)
Brian S. Anderson
/s/Scott H. Anderson Director September 28, 1999
- --------------------------------
Scott H. Anderson
/s/Robert J. Cresci Director September 28, 1999
- --------------------------------
Robert J. Cresci
/s/James L. Davis Director September 28, 1999
- --------------------------------
James L. Davis
/s/Warren Kantor Director September 28, 1999
- --------------------------------
Warren Kantor
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX TO
FORM S-8
ARCADIA FINANCIAL LTD.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Arcadia Financial Ltd. 1999 Omnibus Stock Plan (filed
herewith)
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (included on signature page)
</TABLE>
<PAGE>
EXHIBIT 4.1
ARCADIA FINANCIAL LTD.
1999 OMNIBUS STOCK PLAN
SECTION 1. PURPOSE.
The purpose of the Plan is to promote the interests of the Company and
its shareholders by aiding the Company in attracting, retaining and
incentivizing employees, officers, consultants, independent contractors and
non-employee directors.
SECTION 2. DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) Affiliate shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest, in each case as
determined by the Committee.
(b) Award shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent, Other
Stock Grant or Other Stock-Based Award granted under the Plan.
(c) Award Agreement shall mean any written agreement, contract or
other instrument or document evidencing any Award granted under the Plan.
(d) Code shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
(e) Committee shall mean either the Board of Directors of the Company
or a committee of the Board of Directors appointed by the Board of Directors to
administer the Plan, which committee shall be comprised of not less than such
number of directors as shall be required to permit the Plan to satisfy the
requirements of Rule 16b-3. Each member of the Committee shall be a nonemployee
director within the meaning of Rule 16b-3 and an outside director within the
meaning of Section 162(m) of the Code.
(f) Company shall mean Arcadia Financial Ltd., a Minnesota
corporation, and any successor corporation.
(g) Dividend Equivalent shall mean any right granted under Section
6(e) of the Plan.
(h) Eligible Person shall mean any employee, office , consultant,
independent contractor or director providing services to the Company or any
Affiliate whom the Committee determines to be an Eligible Person.
(i) Fair Market Value shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee. Notwithstanding the foregoing,
unless otherwise determined by the Committee, the Fair Market Value of Shares on
a given date for purposes of the Plan shall not be less than (i) the closing
price as reported for composite transactions, if the Shares are then listed on
the New York Stock Exchange or another national securities exchange, (ii) the
last sale price, if the Shares are then quoted on the NASDAQ National Market, or
(iii) the average of the closing representative bid and asked prices of the
Shares in all other cases, on the date as of which fair market value is being
determined. If on a given date the Shares are not traded in an established
securities market, the Committee shall make a good faith attempt to satisfy the
requirements of this clause and in connection therewith shall take such action
as it deems necessary or advisable.
<PAGE>
(j) Incentive Stock Option shall mean an option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422 of the
Code or any successor provision.
(k) Non-Qualified Stock Option shall mean an option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock Option.
(l) option shall mean an Incentive Stock Option or a Non-Qualified
Stock Option, and shall include Reload Options.
(m) Other Stock Grant shall mean any right granted under Section 6(f)
of the Plan.
(n) Other Stock-Based Award shall mean any right granted under Section
6(g) of the Plan.
(o) Participant shall mean an Eligible Person designated to be granted
an Award under the Plan.
(p) Performance Award shall mean any right granted under Section 6(d)
of the Plan.
(q) Person shall mean any individual, corporation, partnership,
association or trust.
(r) Plan shall mean the Arcadia Financial Ltd. 1999 Omnibus Stock
Plan, as amended from time to time.
(s) Reload Option shall mean any Option granted under Section 6(a)(iv)
of the Plan.
(t) Restricted Stock shall mean any Shares granted under Section 6(c)
of the Plan.
(u) Restricted Stock Unit shall mean any unit granted under Section
6(c) of the Plan evidencing the right to receive a Share (or a cash payment
equal to the Fair Market Value of a Share) at some future date.
(v) Rule 16b-3 shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act or any successor rule or regulation.
(w) Shares shall mean shares of Common Stock, $0.01 par value, of the
Company or such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(c) of the Plan.
(x) Stock Appreciation Right shall mean any right granted under
Section p 6(b) of the Plan.
SECTION 3. ADMINISTRATION.
(a) POWER AND AUTHORITY OF THE COMMITTEE. The Plan shall be
administered by the Committee. Subject to the express provisions of the Plan
and to applicable law, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the type or types of Awards to be granted
to each Participant under the Plan; (iii) determine the number of Shares to be
covered by (or with respect to which payments, rights or other matters are to be
calculated in connection with) each Award; (iv) determine the terms and
conditions of any Award or Award Agreement; (v) amend the terms and conditions
of any Award or Award Agreement and accelerate the exercisability of Options or
the lapse of restrictions relating to Restricted Stock, Restricted Stock Units
or other Awards; (vi) determine whether, to what extent and under what
circumstances Awards may be exercised in cash, Shares, other securities, other
Awards or other property, or canceled, forfeited or suspended; (vii) determine
whether, to what extent and under what circumstances cash, Shares, other
securities, other Awards, other property and other amounts payable with respect
to an Award under the Plan shall be deferred either automatically or at the
election of the holder thereof or the Committee; (viii) interpret and administer
the Plan
-2-
<PAGE>
and any instrument or agreement relating to, or Award made under, the Plan; (ix)
establish, amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (x) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be
made at any time and shall be final, conclusive and binding upon any
Participant, any holder or beneficiary of any Award.
(b) DELEGATION. The Committee may delegate its powers and duties
under the Plan to one or more officers of the Company or any Affiliate or a
Committee of such officers, subject to such terms, conditions and limitations as
the Committee may establish in its sole discretion; PROVIDED, HOWEVER, that the
Committee shall not delegate its powers and duties under the Plan (i) with
regard to officers or directors of the Company or any Affiliate who are subject
to Section 16 of the Exchange Act or (ii) in such a manner as would cause the
Plan not to comply with the requirements of Section 162(m) of the Code.
SECTION 4. SHARES AVAILABLE FOR AWARDS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
4(c), the aggregate number of Shares that may be issued under all Awards under
the Plan shall be 5,000,000. Shares to be issued under the Plan may be either
shares reacquired or newly issued, authorized but unissued shares, if any Shares
covered by an Award or to which an Award relates are not purchased or are
forfeited, or if an Award otherwise terminates without delivery of any Shares,
then the number of Shares counted against the aggregate number of Shares
available under the Plan with respect to such Award, to the extent of any such
forfeiture or termination, shall again be available for granting Awards under
the Plan. Notwithstanding the foregoing, the number of Shares available for
granting Incentive Stock Options under the Plan shall not exceed 5,000,000,
subject to adjustment as provided in the Plan and Section 422 or 424 of the Code
or any successor provision, and the number of Shares available for granting
Restricted Stock and Restricted Stock Units under the Plan shall not exceed
1,000,000 Shares, subject to adjustment as provided in the Plan and Section 422
or 424 of the Code or any successor provision.
(b) ACCOUNTING FOR AWARDS. For purposes of this Section 4, if an
Award entitles the holder thereof to receive or purchase Shares, the number of
Shares covered by such Award or to which such Award relates shall be counted on
the date of grant of such Award against the aggregate number of Shares available
for granting Awards under the Plan.
(c) ADJUSTMENTS. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company
or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee shall, in such manner as it
may deem equitable, adjust any or all of (i) the number and type of Shares (or
other securities or other property) that thereafter may be made the subject of
Awards, (ii) the number and type of Shares (or other securities or other
property) subject to outstanding Awards and (iii) the purchase or exercise price
with respect to any Award; PROVIDED, HOWEVER, that the number of Shares covered
by any Award or to which such Award relates shall always be a whole number.
(d) AWARD LIMITATIONS UNDER THE PLAN. No Eligible Person may be
granted any Award or Awards under the Plan, the value of which Awards is based
solely on an increase in the value of the Shares after the date of grant of such
Awards, for more than 1,000,000 Shares (subject to adjustment as provided for in
Section 4(c)), in the aggregate in any calendar year. The foregoing annual
limitation specifically includes the grant
-3-
<PAGE>
of any Awards representing qualified performance-based compensation within the
meaning of Section 162(m) of the Code.
SECTION 5. ELIGIBILITY.
Any Eligible Person of the Company or any Affiliate, shall be eligible to
be designated a Participant. In determining which Eligible Persons shall
receive an Award and the terms of any Award, the Committee may take into account
the nature of the services rendered by the respective Eligible Persons, their
present and potential contributions to the success of the Company or such other
factors as the Committee, in its discretion, shall deem relevant.
Notwithstanding the foregoing, an Incentive Stock Option may only be granted to
full or part-time employees (which term as used herein includes, without
limitation, officers and directors who are also employees), and an Incentive
Stock Option shall not be granted to an employee of an Affiliate unless such
Affiliate is also a subsidiary corporation of the Company within the meaning of
Section 424(f) of the Code or any successor provision.
SECTION 6. AWARDS.
(a) OPTIONS. The Committee is hereby authorized to grant Options to
Participants with the following terms and conditions and with such additional
terms and conditions not inconsistent with the provisions of the Plan as the
Committee shall determine:
(i) EXERCISE PRICE. The purchase price per Share purchasable
under an Option shall be determined by the Committee; PROVIDED, HOWEVER,
that the purchase price of an Incentive Stock Option shall not be less
than 100% of the Fair Market Value of a Share on the date of grant of
such Option.
(ii) OPTION TERM. The term of each option shall be fixed by the
Committee; PROVIDED that no Incentive Stock Option shall be granted for a
term in excess of 10 years.
(iii) TIME AND METHOD OF EXERCISE. The Committee shall determine
the time or times at which an Option may be exercised in whole or in part
and the method or methods by which, and the form or forms (including,
without limitation, cash, Shares, other securities, other Awards or other
property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price) in which, payment of
the exercise price with respect thereto may be made or deemed to have
been made.
(iv) RELOAD OPTIONS. The Committee may grant Reload Options,
separately or together with another Option, pursuant to which, subject to
the terms and conditions established by the Committee, the Participant
would be granted a new Option when the payment of the exercise price of a
previously granted option is made by the delivery of Shares owned by the
Participant pursuant to Section 6(a)(iii) hereof or the relevant
provisions of another plan of the Company, and/or when Shares are
tendered or forfeited as payment of the amount to be withheld under
applicable income tax laws in connection with the exercise of an Option,
which new Option would be an Option to purchase the number of Shares not
exceeding the sum of (A) the number of Shares so provided as
consideration upon the exercise of the previously granted option to which
such Reload Option relates and (B) the number of Shares, if any, tendered
or withheld as payment of the amount to be withheld under applicable tax
laws in connection with the exercise of the option to which such Reload
Option relates pursuant to the relevant provisions of the plan or
agreement relating to such option. Reload options may be granted with
respect to Options previously granted under the Plan or any other stock
option plan of the Company, and may be granted in connection with any
Option granted under the Plan or any other stock option plan of the
Company at the time of such grant. Such Reload Options shall have a per
share exercise price equal to the Fair Market Value as of the date of
grant of the new Option. Any Reload option shall be subject to
availability of sufficient Shares for grant under the Plan. Shares
surrendered as part or all of the exercise price of the
-4-
<PAGE>
Option to which it relates that have been owned by the optionee less than
six months will not be counted for purposes of determining the number of
Shares that may be purchased pursuant to a Reload Option.
(b) STOCK APPRECIATION RIGHTS. The Committee is hereby authorized to
grant Stock Appreciation Rights to Participants subject to the terms of the Plan
and any applicable Award Agreement. A Stock Appreciation Right granted under
the Plan shall confer on the holder thereof a right to receive upon exercise
thereof the excess of (i) the Fair Market Value of one Share on the date of
exercise (or, if the Committee shall so determine, at any time during a
specified period before or after the date of exercise) over (ii) the grant price
of the Stock Appreciation Right as specified by the Committee, which price shall
not be less than 100% of the Fair Market Value of one Share on the date of grant
of the Stock Appreciation Right. Subject to the terms of the Plan and any
applicable Award Agreement, the grant price, term, methods of exercise, dates of
exercise, methods of settlement and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee. The Committee may
impose such conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate.
(c) RESTRICTED STOCK AND RESTRICTED STOCK UNITS. The Committee is
hereby authorized to grant Restricted Stock and Restricted Stock Units to
Participants with the following terms and conditions and with such additional
terms and conditions not inconsistent with the provisions of the Plan as the
Committee shall determine:
(i) RESTRICTIONS. Shares of Restricted Stock and Restricted
Stock Units shall be subject to such restrictions as the Committee may
impose (including, without limitation, a waiver by the Participant of the
right to vote or to receive any dividend or other right or property with
respect thereto), which restrictions may lapse separately or in
combination at such time or times, in such installments or otherwise as
the Committee may deem appropriate.
(ii) STOCK CERTIFICATES. Any Restricted Stock shall be
registered in the name of the Participant and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to
such Restricted Stock. In the case of Restricted Stock Units, no Shares
shall be issued at the time such Awards are granted.
(iii) FORFEITURE. Except as otherwise determined by the
Committee, upon termination of employment (as determined under criteria
established by the Committee) during the applicable restriction period,
all Shares of Restricted Stock and all Restricted Stock Units at such
time subject to restriction shall be forfeited and reacquired by the
Company; PROVIDED, HOWEVER, that the Committee may, when it finds that a
waiver would be in the best interest of the Company, waive in whole or in
part any or all remaining restrictions with respect to Shares of
Restricted Stock or Restricted Stock Units. Upon the lapse or waiver of
restrictions and the restricted period relating to Restricted Stock Units
evidencing the right to receive Shares, such Shares shall be issued and
delivered to the holders of the Restricted Stock Units.
(d) PERFORMANCE AWARDS. The Committee is hereby authorized to grant
Performance Awards to Participants subject to the terms of the Plan and any
applicable Award Agreement. A Performance Award granted under the Plan (i) may
be denominated or payable in cash, Shares (including, without limitation,
Restricted Stock and Restricted Stock Units), other securities, other Awards or
other property and (ii) shall confer on the holder thereof the right to receive
payments, in whole or in part, upon the achievement of such performance goals
during such performance periods as the Committee shall establish. Subject to
the terms of the Plan and any applicable Award Agreement, the performance goals
to be achieved during any performance period, the length of any performance
period, the amount of any Performance Award granted, the amount of any payment
or transfer to be made pursuant to any Performance Award and any other terms and
conditions of any Performance Award shall be determined by the Committee.
-5-
<PAGE>
(e) DIVIDEND EQUIVALENTS. The Committee is hereby authorized to grant
Dividend Equivalents to Participants, subject to the terms of the Plan and any
applicable Award Agreement, under which such Participants shall be entitled to
receive payments (in cash, Shares, other securities, other Awards or other
property as determined in the discretion of the Committee) equivalent to the
amount of cash dividends paid by the Company to holders of Shares with respect
to a number of Shares determined by the Committee.
(f) OTHER STOCK GRANTS. The Committee is hereby authorized, subject
to the terms of the Plan and any applicable Award Agreement, to grant to
Participants Shares without restrictions thereon as are deemed by the Committee
to be consistent with the purpose of the Plan.
(g) OTHER STOCK-BASED AWARDS. The Committee is hereby authorized to
grant to Participants subject to the terms of the Plan and any applicable Award
Agreement, such other Awards that are denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as are
deemed by the Committee to be consistent with the purpose of the Plan. Shares
or other securities delivered pursuant to a purchase right granted under this
Section 6(g) shall be purchased for such consideration, which may be paid by
such method or methods and in such form or forms (including, without limitation,
cash, Shares, other securities, other Awards or other property or any
combination thereof), as the Committee shall determine.
(h) GENERAL.
(i) NO CASH CONSIDERATION FOR AWARDS. Awards shall be granted
for no cash consideration or for such minimal cash consideration as may
be required by applicable law.
(ii) AWARDS MAY BE GRANTED SEPARATELY OR TOGETHER. Awards may,
in the discretion of the Committee, be granted either alone or in
addition to, in tandem with or in substitution for any other Award or any
award granted under any plan of the Company or any Affiliate other than
the Plan. Awards granted in addition to or in tandem with other Awards
or in addition to or in tandem with awards granted under any such other
plan of the Company or any Affiliate may be granted either at the same
time as or at a different time from the grant of such other Awards or
awards.
(iii) FORMS OF PAYMENT UNDER AWARDS. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or payment
of an Award may be made in such form or forms as the Committee shall
determine (including, without limitation, cash, Shares, other securities,
other Awards or other property or any combination thereof), and may be
made in a single payment or transfer, in installments or on a deferred
basis, in each case in accordance with rules and procedures established
by the Committee. Such rules and procedures may include, without
limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the grant or crediting of
Dividend Equivalents with respect to installment or deferred payments.
(iv) LIMITS ON TRANSFER OF AWARDS. No Award (other than Other
Stock Grants) and no right under any such Award shall be transferable by
a Participant otherwise than by will or by the laws of descent and
distribution; PROVIDED, HOWEVER, that, if so determined by the Committee,
a Participant may, in the manner established by the Committee, transfer
Options (other than Incentive Stock Options) or designate a beneficiary
or beneficiaries to exercise the rights of the Participant and receive
any property distributable with respect to any Award upon the death of
the Participant. Each Award or right under any Award shall be
exercisable during the Participant's lifetime only by the Participant or,
if permissible under applicable law, by the Participant's guardian or
legal representative. No Award or right under any such Award may be
pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
-6-
<PAGE>
(v) TERM OF AWARDS. The term of each Award shall be for such
period as may be determined by the Committee.
(vi) RESTRICTIONS; SECURITIES EXCHANGE LISTING. All Shares or
other securities delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such restrictions as the Committee
may deem advisable under the Plan, applicable federal or state securities
laws and regulatory requirements, and the Committee may cause appropriate
entries to be made or legends to be affixed to reflect such restrictions.
If the Shares or other securities are listed on a securities exchange,
the Company shall not be required to deliver any Shares or other
securities covered by an Award until such Shares or other securities have
been listed on such securities exchange.
SECTION 7. AMENDMENT AND TERMINATION; ADJUSTMENTS.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) AMENDMENTS TO THE PLAN. The Board of Directors of the Company may
amend, alter, suspend, discontinue or terminate the Plan; PROVIDED, HOWEVER,
that, notwithstanding any other provision of the Plan or any Award Agreement,
without the approval of the shareholders of the Company, no such amendment,
alteration, suspension, discontinuation or termination shall be made that,
absent such approval:
(i) would cause Rule 16b-3 or Section 162(m) of the Code to
become unavailable with respect to the Plan;
(ii) would violate the rules or regulations of the New York
Stock Exchange, any other securities exchange or the National Association
of Securities Dealers, Inc. that are applicable to the Company; or
(iii) would cause the Company to be unable, under the Code, to
grant Incentive Stock Options under the Plan.
(b) AMENDMENTS TO AWARDS. The Committee may waive any conditions of
or rights of the Company under any outstanding Award, prospectively or
retroactively. The Committee may not amend, alter, suspend, discontinue or
terminate any outstanding Award, prospectively or retroactively, without the
consent of the Participant or holder or beneficiary thereof, except as otherwise
herein provided or in the Award Agreement.
(c) CORRECTION OF DEFECTS, OMISSIONS AND INCONSISTENCIES. The
Committee may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
SECTION 8. INCOME TAX WITHHOLDING; TAX BONUSES.
(a) WITHHOLDING. In order to comply with all applicable federal or
state income tax laws or regulations, the Company may take such action as it
deems appropriate to ensure that all applicable federal or state payroll,
withholding, income or other taxes, which are the sole and absolute
responsibility of a Participant are withheld or collected from such
Participant. In order to assist a Participant in paying all or a portion of
the federal and state taxes to be withheld or collected upon exercise or
receipt of (or the lapse of restrictions relating to) an Award, the
Committee, in its discretion and subject to such additional terms and
conditions as it may adopt, may permit the Participant to satisfy such tax
obligation by (i) electing to have the Company withhold a portion of the
Shares otherwise to be delivered upon exercise or receipt of (or the lapse of
restrictions relating to) such Award with a Fair Market Value equal to the
amount of such taxes or (ii) delivering to the Company Shares other than
Shares issuable upon exercise or receipt of (or the lapse of restrictions
relating to) such Award with a Fair Market
-7-
<PAGE>
Value equal to the amount of such taxes. The election, if any, must be made
on or before the date that the amount of tax to be withheld is determined.
(b) TAX BONUSES. The Committee, in its discretion, shall have the
authority, at the time of grant of any Award under this Plan or at any time
thereafter, to approve cash bonuses to designated Participants to be paid upon
their exercise or receipt of (or the lapse of restrictions relating to) Awards
in order to provide funds to pay all or a portion of federal and state taxes due
as a result of such exercise or receipt (or the lapse of such restrictions).
The Committee shall have full authority in its discretion to determine the
amount of any such tax bonus.
SECTION 9. GENERAL PROVISIONS.
(a) NO RIGHTS TO AWARDS. No Eligible Person, Participant or other
Person shall have any claim to be granted any Award under the Plan, and there is
no obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Awards under the Plan. The terms and conditions of
Awards need not be the same with respect to any Participant or with respect to
different Participants.
(b) AWARD AGREEMENTS. No Participant will have rights under an Award
granted to such Participant unless and until an Award Agreement shall have been
duly executed on behalf of the Company and, if requested by the Company, signed
by the Participant.
(c) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other or additional compensation arrangements, and such arrangements
may be either generally applicable or applicable only in specific cases.
(d) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or any Affiliate, nor will it affect in any way the right of the Company
or an Affiliate to terminate such employment at any time, with or without cause.
In addition, the Company or an Affiliate may at any time dismiss a Participant
from employment free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement.
(e) GOVERNING LAW. The validity, construction and effect of the Plan
or any Award, and any rules and regulations relating to the Plan or any Award,
shall be determined in accordance with the laws of the State of Minnesota.
(f) SEVERABILITY. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the purpose or intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction
or Award, and the remainder of the Plan or any such Award shall remain in full
force and effect.
(g) NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(h) NO FRACTIONAL SHARES. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash shall be paid in lieu of any fractional Shares or whether such
fractional Shares or any rights thereto shall be canceled, terminated or
otherwise eliminated.
-8-
<PAGE>
(i) HEADINGS. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
(j) OTHER BENEFITS. No compensation or benefit awarded to or realized
by any Participant under the Plan shall be included for the purpose of computing
such Participant's compensation under any compensation-based retirement,
disability, or similar plan of the Company unless required by law or otherwise
provided by such other plan.
SECTION 10. EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective as of January 20, 1999; PROVIDED, HOWEVER,
that if the Company's shareholders do not approve the Plan at the 1999 Annual
Meeting of Shareholders, the Plan shall be null and void and all Awards granted
prior to the date of such Annual Meeting shall be of no force or effect.
SECTION 11. TERM OF THE PLAN.
Awards shall only be granted under the Plan during a 10-year period
beginning on the effective date of the Plan. However, unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
theretofore granted may extend beyond the end of such 10-year period, and the
authority of the Committee provided for hereunder with respect to the Plan and
any Awards, and the authority of the Board of Directors of the Company to amend
the Plan, shall extend beyond the termination of the Plan.
-9-
<PAGE>
EXHIBIT 5.1
Arcadia Financial Ltd.
7825 Washington Avenue South
Minneapolis, MN 55439
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Arcadia Financial Ltd., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on
Form S-8 relating to the sale by the Company from time to time of up to
5,000,000 shares of Common Stock, $.01 par value per share, of the Company (the
"Shares") issuable pursuant to awards granted pursuant to the Arcadia Financial
Ltd. 1999 Omnibus Stock Plan (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
above-described Registration Statement.
Dated: September 30, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
WBP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Arcadia Financial Ltd. 1999 Omnibus Stock Plan and
to the incorporation by reference therein of our report dated January 25, 1999,
with respect to the consolidated financial statements of Arcadia Financial Ltd.
included in its Annual Report on Form 10-K for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 28, 1999
