Registration No. ______________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________
FIRST FEDERAL BANCORP, INC.
-------------------------------------------------------
(Exact name of Registrant as specified in its Articles)
Ohio 31-1341110
- ------------------------------- ------------------------------------
(state or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
505 Market Street
Zanesville, Ohio 43701
----------------------
(Address of Principal Execution Offices)
First Federal Bancorp, Inc.
1997 Performance Stock Option Plan for Senior Executive Officers
----------------------------------------------------------------
and Outside Directors
---------------------
(Full title of the plan)
J. William Plummer
First Federal Bancorp, Inc.
505 Market Street
Zanesville, Ohio 43701
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(Name and address of agent for service)
(740) 588-2263
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares
No par value 54,000 shares * $736,920 * $310
__________________
<F*> Of the 108,000 shares being registered, 36,000 may be purchased for
$9.97 per share, upon the exercise of options already granted. The
offering price of the remaining 72,000 shares, which have been reserved
for the future grant of options, has been determined for purposes of
calculating the registration fee pursuant to 17 C.F.R. [SECTION] 230.457(h)
to be $10.50 per share on December 4, 1998.
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
----------------------------------------
The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1997, and all documents filed with the Commission
pursuant to the requirements of Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 ("Exchange Act") since that date are hereby
incorporated by reference.
The description of the Common Shares of the Registrant contained in
the Registrant's Form 8-A (No. 0-20380), filed with the Commission on July
7, 1992, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date hereof 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 also
be deemed to be incorporated herein by reference and to be made a part
hereof from the date of filing such documents.
ITEM 4. Description of Securities.
--------------------------
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
---------------------------------------
None.
ITEM 6. Indemnification of Directors and Officers.
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A. Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by reason
of the fact that he is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person
is adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to
the extent that, the court of common pleas or the court in which
such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
divisions (E)(1) and (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(1) or (2)
of this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened with any such action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which
such action, suit, or proceeding referred to in division (E)(1)
or (2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten
days after receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which
action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of the Revised
Code, expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding, upon receipt of an undertaking by
or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent
in defending any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by
the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if it
ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for any
person who is or was a director, officer, employee, member, manager,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation
has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this
section do not create any obligation to repay or return payments made
by the corporation pursuant to division (E)(5), (6), or (7).
(9) As used in this division, references to "corporation"
includes all constituent corporations in a consolidation or merger and
the new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager or agent of such
a constituent corporation, or is or was serving at the request of such
constituent corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in
the same position under this section with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
B. Article Five of the Registrant's Code of Regulations provides for
the indemnification of officers and directors as follows:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any
action threatened or instituted by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee or agent of another
corporation (domestic or foreign, nonprofit or for profit), partnership,
joint venture, trust or other enterprise, against expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees
and transcript costs), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, he
had no reasonable cause to believe his conduct was unlawful. A person
claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for
indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal matter, to have had no
reasonable cause to believe his conduct was unlawful, and the termination
of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed action
or suit instituted by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, in respect of any claim, issue
or matter asserted in such action or suit as to which he shall have
been adjudged to be liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation
unless and only to the extent that the Court of Common Pleas of
Muskingum County, Ohio, or the court in which such action or suit
was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances of
the case, he is fairly and reasonably entitled to such indemnity as
such Court of Common Pleas or such other court shall deem proper;
and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Section 5.01, or in defense of any claim, issue or matter
therein, he shall be promptly indemnified by the corporation against
expenses (including, without limitation, attorneys' fees, filing fees,
court reporters' fees and transcript costs) actually and reasonably
incurred by him in connection therewith.
Section 5.04 Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by
the corporation only upon a determination that such indemnification of
the officer or director is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding, or
(B) if such a quorum is not obtainable or if a majority of a quorum of
disinterested directors so directs, in a written opinion by independent
legal counsel other than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has performed services for
the corporation, or any person to be indemnified, within the past five
years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Muskingum County, Ohio, or (if the corporation is a party thereto) the
court in which such action, suit or proceeding was brought, if any; any
such determination may be made by a court under division (D) of this
Section 5.04 at any time including, without limitation, any time before,
during or after the time when any such determination may be requested of,
be under consideration by or have been denied or disregarded by the
disinterested directors under division (A) or by independent legal
counsel under division (B) or by the shareholders under division (C) of
this Section 5.04; and no failure for any reason to make any such
determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal
counsel under division (B) of this Section 5.04 to make indemnification
in respect of any claim, issue or matter asserted in an action or suit
threatened or brought by or in the right of the corporation shall be
promptly communicated to the person who threatened or brought such action
or suit, and within ten (10) days after receipt of such notification such
person shall have the right to petition the Court of Common Pleas of
Muskingum County, Ohio, or the court in which such action or suit was
brought, if any, to review the reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding to or on
behalf of the officer or director promptly as such expenses are incurred
by him, but only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim, issue or
other matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in
Section 5.04 that he is not entitled to be indemnified by the
corporation as provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or
suit, he shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty
to the corporation, unless and only to the extent that the Court of
Common Pleas of Muskingum County, Ohio, or the court in which such
action or suit was brought shall determine upon application that,
despite such adjudication of liability, and in view of all the
circumstances, he is fairly and reasonably entitled to all or part
of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be deemed exclusive of any other
rights to which any person seeking indemnification may be entitled under
the Articles or the Regulations or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be an officer or
director of the corporation and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer, employee,
or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the obligation or the power to indemnify him
against such liability under the provisions of this Article Five.
Section 5.08. Certain Definitions. For purposes of this Article
Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5
shall be deemed to have been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
Section 5.01, or in defense of any claim, issue or other matter
therein, if such action, suit or proceeding shall be terminated as
to such person, with or without prejudice, without the entry of a
judgment or order against him, without a conviction of him, without
the imposition of a fine upon him and without his payment or
agreement to pay any amount in settlement thereof (whether or not
any such termination is based upon a judicial or other
determination of the lack of merit of the claims made against him
or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include
employee benefit plans; references to a "fine" shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests
of the corporation" within the meaning of that term as used in this
Article Five.
Section 5.09. Venue. Any action, suit or proceeding to determine
a claim for indemnification under this Article Five may be maintained by
the person claiming such indemnification, or by the corporation, in the
Court of Common Pleas of Muskingum County, Ohio. The corporation and (by
claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Muskingum County, Ohio, in any such action, suit or proceeding.
ITEM 7. Exemption from Registration Claimed.
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Not Applicable.
ITEM 8. Exhibits.
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See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
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A. Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered 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 with or furnished
to the Commission 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. Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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 Zanesville, State of Ohio, on
December 2, 1998.
FIRST FEDERAL BANCORP, INC.
By: /s/ J. William Plummer
----------------------
J. William Plummer
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ J. William Plummer President, Chief Executive December 2, 1998
- --------------------------
J. William Plummer Officer and Director
/s/ Ward D. Coffman, III Secretary, Director December 2, 1998
- --------------------------
Ward D. Coffman, III
/s/ Connie Ayres LaPlante Treasurer, Director December 2, 1998
- --------------------------
Connie Ayres LaPlante
/s/ Robert D. Goodrich, II Director December 2, 1998
- --------------------------
Robert D. Goodrich, II
/s/ Patrick L. Hennessey Director December 2, 1998
- --------------------------
Patrick L. Hennessey
/s/ John C. Matesich Chairman, Director December 2, 1998
- --------------------------
John C. Matesich
/s/ Don R. Parkhill Director December 2, 1998
- --------------------------
Don R. Parkhill
EXHIBIT INDEX
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Exhibit No. Document
- ----------- --------
4(a) First Federal Bancorp, Inc., 1997 Performance Stock
Option Plan for Senior Executive Officers and Outside
Directors
5 Opinion of Vorys, Sater, Seymour and Pease LLP as to
legality of shares being offered
23(a) Consent of Independent Public Accountant
23(b) Consent of Vorys, Sater, Seymour and Pease LLP (contained
in Exhibit 5 herein)
EXHIBIT 4(a)
FIRST FEDERAL BANCORP, INC.
1997 PERFORMANCE STOCK OPTION PLAN
FOR SENIOR EXECUTIVE OFFICERS AND OUTSIDE DIRECTORS
1. Purpose of this Plan. The purpose of the First Federal Bancorp,
Inc., 1997 Performance Stock Option Plan for Senior Executive Officers and
Outside Directors is to provide incentive to the senior executive officers
and outside directors of First Federal Bancorp, Inc., and First Federal
Savings Bank of Eastern Ohio to maintain and improve the financial
performance of First Federal Bancorp, Inc. This Plan is intended to
authorize the grant of incentive stock options, as defined in Section 422 of
the Internal Revenue Code of 1986, as amended, and options which do not
qualify as incentive stock options under such code.
2. Definitions. As used in this Plan, the following terms have the
corresponding meanings:
(a) "Board" means the Board of Directors of First Federal
Bancorp, Inc. ("FFB"), or any successor corporation upon assumption of
this Plan.
(b) "Cause" means failure to comply with the Human Resources
Policies of FFB or First Federal Savings Bank of Eastern Ohio ("FFS")
or personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure or
refusal to perform the duties and responsibilities assigned to the
Optionee in any employment agreement to which the Optionee is a party,
willful violation of any law, rule, regulation or final cease-and
desist order (other than traffic violations or similar offenses),
conviction of a felony or for fraud or embezzlement, or material
breach of any provision of any employment agreement to which the
Optionee is a party.
(c) "Change of Control" means (i) the execution of an agreement
for the sale of all, or a material portion, of the assets of FFB or
FFS as would require a vote of shareholders under Ohio corporate law;
(ii) the execution of an agreement for a merger or recapitalization of
FFB or FFS or any merger or recapitalization whereby FFB is not the
surviving entity; (iii) a change of control of the FFB or FFS, as
defined or determined by the OTS; or (iv) the acquisition, directly or
indirectly, of the beneficial ownership (within the meaning of the
term "beneficial ownership" as defined under Section 13(d) of the
Exchange Act and the rules promulgated thereunder) of twenty-five
percent (25%) or more of the outstanding voting securities of FFB or
FFS by any person, trust, entity or group.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Stock Option Committee appointed by
the Board in accordance with Section 4(a) hereof.
(f) "Continuous Service" means the absence of any interruption
or termination of service to FFB or FFS by a Senior Executive Officer
or by an Outside Director. Service shall not be considered
interrupted in the case of sick leave, military leave or any other
leave of absence approved by the Board.
(g) "Effective Date" means the date on which this Plan is
adopted by the Board.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Fair Market Value" shall be determined as set forth in
Section 8(a) of this Plan.
(j) "FFB" means First Federal Bancorp, Inc., or any successor
corporation upon assumption of this Plan.
(k) "FFS" means First Federal Savings Bank of Eastern Ohio, the
wholly owned subsidiary of FFB.
(l) "ISO" means an incentive stock option, as defined in
Section 422 of the Code.
(m) "NQSO" means a stock option which does not qualify as an
incentive stock option, as defined in Section 422 of the Code.
(n) "OTS" means the Office of Thrift Supervision.
(o) "Option" means an ISO or NQSO granted in accordance with
the terms and subject to the conditions of this Plan.
(p) "Optionee" means a Senior Executive Officer or an Outside
Director who receives an Option pursuant to this Plan.
(q) "Outside Directors" means the five members of the Board who
are not employees of FFB or FFS and who are members of the Board on
the Effective Date.
(r) "Plan" means the First Federal Bancorp, Inc., 1997
Performance Stock Option Plan for Senior Executive Officers and
Outside Directors.
(s) "ROE" means the return on equity of FFB for a fiscal year
as calculated in accordance with generally accepted accounting
principles and as reported in the Annual Report to Shareholders for
such year.
(t) "Senior Executive Officers" means the President of FFB and
FFS and the three Senior Vice Presidents of FFS on the Effective Date.
(u) "Share" or "Shares" means one or more common shares, with
no par value, of FFB.
3. Shares Subject to this Plan.
(a) Shares Available. Subject to adjustment as provided in Section
3(b) of this Plan, the aggregate number of Shares with respect to which
Options may be granted pursuant to this Plan shall be 54,000. In the event
that (i) any Shares subject to an Option granted under this Plan, or as to
which such Option relates, are forfeited or (ii) an Option otherwise
terminates or is canceled without the delivery of Shares, the Shares covered
by such Option, or as to which such Option relates, shall become Shares with
respect to which Options may be granted to the extent permissible under Rule
16b-3 promulgated under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time. In the event that any
Option is exercised through the delivery of Shares, the number of Shares
available for Options under this Plan shall be increased by the number of
Shares surrendered, to the extent permissible under Rule 16b-3 promulgated
under the Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.
(b) Adjustments and Corporate Acts. (i) In the event 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, exchange of Shares or other securities of FFB,
issuance of warrants or other rights to purchase Shares or other securities
of FFB, or other similar corporation transaction or event affects the Shares
in a manner by which an adjustment is necessary in order to prevent dilution
or enlargement of the benefits or potential benefits intended to be made
available under this Plan, the Committee shall proportionately adjust any or
all (as necessary) of (I) the number of Shares or other securities of FFB
(or number and kind of other securities or property) with respect to which
Options may be granted; (II) the number of Shares or other securities of FFB
(or number and kind of other securities or property) subject to outstanding
Options; and (III) the grant or exercise price with respect to any Options;
provided, however, that no such adjustment shall be authorized to the extent
that such authority would cause this Plan to violate Section 422(b)(1) of
the Code, as from time to time amended, or Rule 16b-3 promulgated under the
Exchange Act, or any successor rule or regulation thereto as in effect from
time to time.
(ii) The existence of this Plan and the Options granted
hereunder shall not affect or restrict in any way the right or power
of the Board or the shareholders of FFB to make or authorize any
adjustment, recapitalization, reorganization or other change in FFB's
capital structure or its business, any merger, acquisition or
consolidation of FFB, any issuance of bonds, debentures, preferred or
prior preference stocks ahead of or affecting FFB's capital stock or
the rights thereof, the dissolution or liquidation of FFB or any sale
or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, including any merger or acquisition which
would result in the exchange of cash, stock of another company or
options to purchase the stock of another company for any Option
outstanding at the time of such corporate transaction or which would
involve the termination of all Options outstanding at the time of such
corporate transaction.
4. Administration.
(a) Stock Option Committee. This Plan shall be administered by a
Stock Option Committee appointed by the Board. The Committee shall consist
of at least three members of the Board, one of whom shall be an employee of
FFS, and may consist of the entire Board.
(b) Powers of the Committee. The Committee is authorized to
interpret this Plan and to prescribe, amend and rescind rules and
regulations relating to this Plan; to determine the form and content of
Options to be issued under this Plan; and to make such other determinations
necessary or advisable for the administration of this Plan. The Committee
shall have and may exercise such other power and authority as may be
delegated to it by the Board from time to time. A majority of the entire
Committee shall constitute a quorum and the action of a majority of the
members present at any meeting at which a quorum is present shall be deemed
the action of the Committee. In no event may the Committee revoke
outstanding Options without the consent of the Optionee. The President of
FFB and such other officers as shall be designated by the Committee are
hereby authorized to execute instruments evidencing Options approved by the
Committee on behalf of FFB and to cause them to be delivered to the
Optionees. The construction and the interpretation of the provisions of
this Plan are vested with the Committee, in its absolute discretion. All
such decisions, determinations and interpretations shall be final,
conclusive and binding upon all parties having an interest in this Plan.
5. Eligibility. Eligibility to participate in this Plan shall be
limited to the Senior Executive Officers and to the Outside Directors.
6. Term of Plan. This Plan shall continue in effect for a term of
five (5) years from the Effective Date, unless earlier terminated pursuant
to Section 13 hereof. Unless otherwise expressly provided in this Plan or
in an applicable award agreement, the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue or terminate any
such award or to waive any conditions or rights under any such award shall
continue after the expiration of such term.
7. Grant of Options.
(a) Automatic Performance Grant. In the event that the ROE for any
one of the fiscal years ended September 30, 1997, 1998, 1999, 2000 or 2001,
equals or exceeds the average ROE for the five fiscal years preceding any
such fiscal year, each one of the Senior Executive Officers and each one of
the Outside Directors shall automatically be granted on the immediately
following December 1 an Option to purchase 2,000 Shares; provided, however,
that the maximum aggregate number of Shares subject to Options granted to
any one Senior Executive Officer or any one Outside Director under this Plan
shall not exceed 6,000.
(b) Option Agreement. Each Option granted pursuant to this Plan
shall be evidenced by an instrument in a form approved by the Committee.
Such instrument shall contain terms and conditions which are consistent with
this Plan. Any option granted to a Senior Executive Officer shall be an
ISO. Any option granted to an Outside Director shall be a NQSO.
8. Terms and Conditions of Options. Each and every Option granted
pursuant to this Plan shall comply with, and be subject to, the following
terms and conditions:
(a) Option Price. (i) The price per Share at which each Option
granted under this Plan may be exercised shall be the Fair Market
Value of the Shares on the date such Option is granted, except as set
forth in subsection (ii) of this Section 8(a). The Fair Market Value
shall equal the mean between the closing high bid and low asked
quotations with respect to a Share on such date on The Nasdaq Stock
Market.
(ii) The foregoing notwithstanding, in the event an
Optionee owns Shares representing more than ten percent (10%) of
the outstanding Shares at the time the Option is granted, the
Option exercise price shall not be less than one hundred and ten
percent (110%) of the Fair Market Value of the Shares at the
time the Option is granted.
(b) Method of Exercise. An Option may be exercised, in whole
or in part, by giving written notice of exercise to FFB. Such notice
shall specify the number of Shares to be purchased. Full payment for
each Share purchased upon the exercise of any Option granted under
this Plan shall be made at the time of exercise of each such Option
and shall be paid in cash or cash equivalents, including personal
checks, or, if permitted by the Committee, in Shares or a combination
of cash or cash equivalents and Shares. Shares utilized in full or
partial payment of the exercise price shall be valued at the Fair
Market Value at the date of exercise. FFB shall accept full or
partial payment in Shares only to the extent permitted by applicable
law. No Shares shall be issued until full payment therefor has been
received by FFB. No Optionee shall have any of the rights of a
shareholder of FFB until Shares are issued to such Optionee.
(c) Term of Option. Subject to the right of FFB to provide for
earlier termination in the event of any merger, acquisition or
consolidation involving FFB, the term of each Option granted pursuant
to this Plan shall be ten (10) years from the date each such Option is
granted; provided, however, that in the case of a Senior Executive
Officer who owns a number of Shares representing more than ten percent
(10%) of the Shares outstanding at the time the Option is granted, the
term of the Option shall be five (5) years.
(d) Exercise Generally. Any Option granted pursuant to this
Plan shall, unless otherwise specified by the Committee at the time of
grant, be exercisable immediately after the date of grant of such
Option; provided, however, that except as otherwise provided in
Section 9 hereof, no Option may be exercised unless the Optionee shall
have been a Senior Executive Officer or an Outside Director of FFB or
FFS at all times during the period beginning with the date of grant of
any such Option and ending on the date which is three (3) months
before the date of exercise of any such Option. The Committee may
impose additional conditions upon the right of an Optionee to exercise
any Option granted hereunder as long as such conditions are not
inconsistent with the terms of this Plan.
(e) Transferability. Any Option granted pursuant to this Plan
shall be exercised during any Optionee's lifetime only by the Optionee
to whom such option is granted and shall not be assignable or
transferable other than by will or by the laws of descent and
distribution.
(f) Limit on Grant. In no event shall an Optionee be granted
Options to purchase Shares in excess of twenty-five percent (25%) of
the aggregate Shares subject to this Plan as described in Section 3
hereof.
(g) Change of Control. Notwithstanding any provision set forth
in the instruments pursuant to which individual Options are granted,
all outstanding Options shall become immediately exercisable in the
event of a Change of Control.
9. Effect of Termination of Continuous Employment, Disability or
Death on Options.
(a) Termination of Continuous Employment. In the event that any
Optionee's Continuous Service to FFB or FFS shall terminate for any reason,
other than permanent and total disability (as such term is defined in
Section 22(e)(3) of the Code, as from time to time amended), death or
termination for Cause, all of any such Optionee's Options and all of any
such Optionee's rights to purchase or receive Shares pursuant thereto shall
automatically terminate on the earlier of (i) the respective expiration
dates of any such Options or (ii) the date which is three (3) months after
the date of such termination of Continuous Service.
(b) Disability. In the event that any Optionee's Continuous Service
to FFB or FFS shall terminate as the result of the permanent and total
disability (as such term is defined in Section 22(e)(3) of the Code, as from
time to time amended) of such Optionee and the Optionee was entitled to
exercise Options at the date of such termination of Continuous Service, such
Optionee may exercise any Options granted to him pursuant to this Plan at
any time prior to the earlier of (i) the respective expiration dates of any
such Options or (ii) the expiration of one (1) year after the date of such
termination of Continuous Service.
(c) Death. In the event of the death of any Optionee on a date on
which the Optionee was entitled to exercise any such Options, any Options
granted to any such Optionee may be exercised by the person or persons to
whom the Optionee's rights under any such Options pass by will or by the
laws of descent and distribution (including the Optionee's estate during the
period of administration) at any time prior to the earlier of (i) the
respective expiration dates of any such Options or (ii) the expiration of
six (6) months after the date of death of such Optionee (or such later
period not to exceed one (1) year which the Committee may permit, in its
discretion).
(d) Termination for Cause. In the event an Optionee's service to FFB
or FFS is terminated for Cause, any Options granted to such Optionee which
are outstanding on the date of termination shall be forfeited.
(e) Termination of Options. To the extent that any Option granted
under this Plan to any Optionee whose Continuous Service to FFB or FFS
terminates shall not have been exercised within the applicable period set
forth in this Section 9, any such Option, and all rights to purchase or
receive Shares pursuant thereto, shall terminate on the last date of the
applicable period.
10. Time of Granting Options. The date of grant of an Option under
this Plan shall be the applicable date under Section 7 of this Plan. Notice
of the grant shall be given to each Optionee to whom an Option is so granted
within a reasonable time after the date of such grant.
11. Effective Date. The Effective Date of this Plan shall be the
date on which this Plan is adopted by the Board.
12. Approval by Shareholders. This Plan shall be approved by the
shareholders of FFB within twelve (12) months before or after the Effective
Date.
13. Amendment and Termination of this Plan.
(a) Amendment and Termination of this Plan by the Board. The Board
may alter, suspend or discontinue this Plan, except that no action of the
Board may increase (other than as provided in Section 3(b) hereof) the
maximum number of Shares subject to Options granted under this Plan,
materially increase the benefits accruing to Optionees under this Plan or
materially modify the requirements for eligibility for participation in this
Plan, unless such action of the Board shall be approved or ratified by the
shareholders of FFB.
(b) Change in Applicable Law. Notwithstanding any other provision
contained in this Plan, in the event of a change in any federal or state
law, rule or regulation which would make the exercise of all or part of any
previously granted Option unlawful or subject FFB to any penalty, the
Committee may restrict any such exercise without the consent of the Optionee
or other holder thereof in order to comply with any such law, rule or
regulation or to avoid any such penalty.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
with respect to any Option granted under this Plan unless the issuance and
delivery of such Shares shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
rules and regulations promulgated thereunder, any applicable state
securities law and the requirements of any stock exchange or quotation
system upon which the Shares may then be listed or quoted. As a condition
to the exercise of an Option, FFB may require the person exercising the
Option to make such representations and warranties as may be necessary to
assure the availability of an exemption from the registration requirements
of federal and state securities law.
15. Reservation of Shares. During the term of this Plan, FFB will
reserve and keep available a number of Shares sufficient to satisfy the
requirements of this Plan.
16. Unsecured Obligation. No Optionee under this Plan shall have any
interest in any fund or special asset of FFB by reason of this Plan or the
grant of any Option to such Optionee under this Plan. No trust fund shall
be created in connection with this Plan or any grant of any Option
hereunder, and there shall be no required funding of amounts which may
become payable to any Optionee.
17. Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Ohio, except to the extent that
federal law shall be deemed to apply.
18. Compliance with Rule 16b-3. 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 promulgated thereunder
or any successor rule or regulation thereto as in effect from time to time.
To the extent any provision of this 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.
19. Tax Withholding. FFB shall have the right to deduct from any
settlement, including the delivery or vesting of Shares, made under this
Plan any federal, state or local taxes of any kind required by law to be
withheld with respect to such payments or to take such other action as may
be necessary in the opinion of FFB to satisfy all obligations for the
payment of such taxes. If Shares are used to satisfy tax withholding, such
Shares shall be valued based on the Fair Market Value when the tax
withholding is required.
20. No Right to Employment. Neither the adoption of this Plan nor
the granting of any Option shall confer upon any employee of FFB or FFS any
right to continued employment with FFB or FFS, as the case may be, nor shall
it interfere in any way with the right of FFB or FFS to terminate the
employment of any of its employees at any time, with or without cause.
EXHIBIT 5
(513) 723-4009
December 8, 1998
Board of Directors
First Federal Bancorp, Inc.
505 Market Street
Zanesville, Ohio 43701
Gentlemen:
We have acted as special counsel for First Federal Bancorp, Inc., an
Ohio Corporation (the "Company"), in connection with the proposed issuance
and sale of the common shares of the Company, no par value (the "Common
Shares"), upon the exercise of options granted to purchase such Common
Shares pursuant to the First Federal Bancorp, Inc., 1997 Performance Stock
Option Plan for Senior Executive Officers and Outside Directors as described
in the Registration Statement on Form S-8 to be filed with the Securities
and Exchange Commission on or about December 9, 1998 (the "Registration
Statement"), for the purpose of registering 108,000 Common Shares reserved
for issuance under the Plan pursuant to the provisions of the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification
or investigation, (a) the Registration Statement; (b) the Company's Articles
of Incorporation, as certified by the Secretary of State of Ohio on December
7, 1998; (c) the Code of Regulations of the Company as certified by the
President and the Treasurer of the Company on December 8, 1998; (d) the
Certificate of Inspector of Election for the meeting of the shareholders of
the Company held on April 23, 1998; (e) the minutes of the Board of
Directors of the Company dated March 5, 1997; (f) a Certificate of Good
Standing with respect to the Company issued by the Secretary of State of
Ohio dated December 7, 1998; (g) a Certificate of the President and
Treasurer of the Company dated December 8, 1998; and (h) such other
representations of the Company and its officers as we have deemed relevant.
In our examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted
to us as copies and the authenticity of such originals of such latter
documents. We have also assumed the due preparation of share certificates
and compliance with applicable federal and state securities laws.
Based solely upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date hereof, we
are of the opinion that after the Common Shares shall have been issued by
the Company upon the exercise of the options and payment therefor in full in
the manner provided in the Plans and in the Registration Statement (when it
becomes effective), such Common Shares issued upon the exercise of such
options will be validly issued, fully paid and non-assessable.
This opinion is limited to the federal laws of the United States and
to the laws of the State of Ohio having effect as of the date hereof. This
opinion is furnished by us solely for the benefit of the Company in
connection with the offering of the Common Shares and the filing of the
Registration Statement and any amendments thereto. This opinion may not be
relied upon by any other person or assigned, quoted or otherwise used
without our specific written consent.
We consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement and to the reference to us in the
Registration Statement.
Very truly yours,
/s/ Vorys, Sater, Seymour and Pease LLP
VORYS, SATER, SEYMOUR AND PEASE LLP
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of First Federal Bancorp, Inc., on Form S-8 of our report dated
October 23, 1997, on the consolidated statement of financial condition of
First Federal Bancorp, Inc., as of September 30, 1997 and 1996, and the
consolidated statements of income, stockholders' equity and cash flows for
each of the three years ended September 30, 1997, 1996, and 1995.
/s/ Crowe, Chizek and Company LLP
Columbus, Ohio
December 8, 1998
