<PAGE> 1
As filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-64621-01
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 /*/
--------------------
ST. FRANCIS CAPITAL CORPORATION
(Exact name of Registrant as Specified in its Charter)
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WISCONSIN 6711 39-1747461
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(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Code Number) Identification No.)
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13400 BISHOPS LANE, SUITE 350
BROOKFIELD, WISCONSIN 53005-6203
(414) 486-8700
--------------------------------
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
RELIANCE BANCSHARES, INC.
1997 STOCK OPTION PLAN
-------------------------
(Full title of the plan)
THOMAS R. PERZ, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
ST. FRANCIS CAPITAL CORPORATION
13400 BISHOPS LANE, SUITE 350
BROOKFIELD, WISCONSIN 53005-6203
(414) 486-8700
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(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
Copies to:
TERESA M. LEVY, ESQ.
MICHAEL BEST & FRIEDRICH LLP
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WISCONSIN 53202
/*/ Filed as Post-Effective Amendment No. 1 on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described herein. See
"Introductory Statement."
Total Number of Pages: 9
Exhibit Index on Page 9
<PAGE> 2
CALCULATION OF REGISTRATION FEE
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================================================================================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE OFFERING FEE
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Common Stock 52,973(2) $ 31.24(2) $ 1,654,877 N/A(3)
$0.01 par value
per share 9,051(2) $ 37.00(2) $ 334,887 N/A(3)
(and Associated
Purchase Rights)
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(1) Includes one Associated Purchase Right per share of common stock, $0.01
par value per share ("Common Stock"), of St. Francis Capital
Corporation., a Wisconsin corporation (the "Company" or "Registrant"),
issuable upon the exercise of options granted under the Reliance
Bancshares, Inc. 1997 Stock Option Plan (the "Plan").
(2) Represents the number of shares of Common Stock issuable upon the
exercise of options which were granted under the Plan prior to the
effective time of the merger of Reliance Bancshares, Inc., a Wisconsin
corporation ("Reliance"), with and into the Company (the "Merger").
Pursuant to the terms of the Agreement and Plan of Reorganization,
dated June 30, 1998, by and between the Company and Reliance (the
"Reorganization Agreement"), each outstanding option to acquire shares
of common stock of Reliance that was granted under the Plan prior to
the effective time of the Merger could be converted into an option to
acquire shares of Common Stock based upon a conversion ratio described
further herein and the exercise price of previously granted options was
adjusted as further described herein. See "Introductory Statement."
(3) A registration fee covering 740,022 shares of Common Stock to be issued
in connection with the Merger was paid by the Registrant with the
Registration Statement on Form S-4 (Registration No. 333-64621) filed
with the Securities and Exchange Commission on September 29, 1998. Of
the 740,022 shares of Common Stock registered on the Registration
Statement on Form S-4, 367,282 shares were issued to holders of
Reliance Common Stock in connection with the Merger and of the
remaining 372,740 shares of Common Stock, 62,024 are being registered
pursuant to this Post-Effective Amendment No. 1 on Form S-8 to the
Registration Statement on Form S-4.
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<PAGE> 3
INTRODUCTORY STATEMENT
St. Francis Capital Corporation, a Wisconsin corporation (the "Company"
or "Registrant") hereby amends its Registration Statement on Form S-4
(Registration No. 333-64621) (the "Form S-4") by filing this Post-Effective
Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") relating to the
sale of up to 62,024 shares of common stock, $0.01 par value per share, of the
Company ("Common Stock") issuable upon the exercise of options granted under the
Reliance Bancshares, Inc. 1997 Stock Option Plan (the "Plan").
On January 22, 1999, Reliance Bancshares, Inc., a Wisconsin corporation
("Reliance") was merged with and into the Company (the "Merger"). Pursuant to
the Merger, each of the outstanding options to acquire shares of common stock of
Reliance granted under the Plan prior to the Effective Time was converted, at
the election of the holders thereof, into either options to acquire shares of
Common Stock or cash in the amount of $10.40 per share. As of the effective time
of the Merger, the Company assumed the rights, duties and obligations of
Reliance under the Plan. The number of shares of Common Stock that the holder of
an assumed option will be entitled to receive upon the exercise of such option
is the number of whole shares determined by multiplying the number of shares of
Reliance common stock subject to such option by a conversion ratio of .25, and
the exercise price of each share of Common Stock subject to an assumed option is
the amount (rounded to the nearest whole cent) obtained by dividing the exercise
price applicable to options to acquire shares of Reliance common stock by .25.
The duration and terms of the assumed options shall be the same as the options
to acquire Reliance common stock.
The designation of the Post-Effective Amendment as Registration No.
333-64621-01 denotes that the Post-Effective Amendment relates only to shares
of Common Stock issuable upon the exercise of options granted under the Plan.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I will be included in documents sent
or given to participants in the Plan. Such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Post-Effective Amendment or as prospectuses or prospectus supplements pursuant
to Rule 424 in reliance on Rule 428.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the
Commission are incorporated herein by reference and made a part hereof:
(a) The Company's latest Annual Report on Form 10-K for the year
ended September 30, 1998, which includes the consolidated
statements of financial condition of the Company as of
September 30, 1998 and 1997 and the related consolidated
statements of income, changes in shareholders' equity and cash
flows for each of the years in the three year period ended
September 30, 1998, together with the related notes and Report
of Independent Auditors of the Company (dated October 23,
1998).
(b) All other reports filed pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of
the last fiscal year for which financial statements were
included in the report referred to in (a) above.
(c) The Company's Proxy Statement relating to the Company's Annual
Meeting of Shareholders held on January 27, 1999, filed with
the Commission on December 17, 1998.
(c) The description of the Company's Common Stock and the Company's
Series A Junior Participating Preferred Stock and Preferred
Stock Purchase Rights contained in the Company's Prospectus,
dated December 8, 1998, and included in the Company's
Registration Statement on Form S-4 (File No. 333-64621) which
was declared effective by the Commission on December 8, 1998.
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<PAGE> 4
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Company is
required to indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if such person was a party
because he or she was a director or officer of the Company. In all other cases,
the Company is required by Section 180.0851(2) to indemnify a director or
officer against liability incurred in a proceeding to which such a person was a
party because he or she was a director or officer of the Company, unless it is
determined that he or she breached or failed to perform a duty owed to the
Company and the breach or failure to perform constitutes: (i) a willful failure
to deal fairly with the Company or its shareholders in connection with a matter
in which the director or officer has a material conflict of interest; (ii) a
violation of criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was unlawful; (iii) a transaction from which the
director or officer derived an improper personal profit; or (iv) willful
misconduct. Section 180.0858(1) provides that, subject to certain limitations,
the mandatory indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under the Company's articles of incorporation, bylaws, a written agreement or a
resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification, allowance
of expenses and insurance to the extent required to be permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or any
person asserting rights on behalf of the corporation or its shareholders, for
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Section 180.0833 of the WBCL provides that with certain
exceptions, directors of the Company against whom claims are asserted with
respect to the declaration of improper dividends or distributions to
shareholders or certain other improper acts which they approved are entitled to
contribution from other directors who approved such actions and from
shareholders who knowingly accepted an improper dividend or distribution, as
provided therein. In addition, Articles VIII and IX of the Company's Articles of
Incorporation provide as follows:
"Article VIII. Indemnification."
A. Each person who was or is made a party or is
threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of service as
a director or officer of the Corporation or is or was
serving or has agreed to serve at the
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<PAGE> 5
request of the Corporation as a director or officer
of another corporation, including, without
limitation, any subsidiary, partnership, joint
venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter
an "indemnitee"), whether the basis of such
proceeding is alleged action in their capacity as a
director or officer or in any other capacity while
serving as such, shall be indemnified and held
harmless to the fullest extent authorized by the
WBCL, as the same exists or may hereafter be amended
(but, in the case of any amendment, only to the
extent the amendment permits the Corporation to
provide broader indemnification rights than such law
permitted prior to amendment), against all expense,
liability and loss (including attorneys' fees,
judgments, fines, Employee Retirement Income Security
Act of 1974 excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered
by the indemnitee in connection therewith; provided,
however, that, except as provided in Section C of
this Article VIII with respect to proceedings to
enforce rights to indemnification, the Corporation
shall indemnify such indemnitee in connection with a
proceeding (or part thereof) initiated by the
indemnitee only if the proceeding (or part thereof)
was authorized by the Board pursuant to the WBCL on
written request by the indemnitee to the Corporation.
B. The right to indemnification conferred in Section A
of this Article VIII shall include the right to be
paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final
disposition ("advancement of expenses"); provided,
that if the WBCL requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee,
including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the
Corporation of an undertaking ("undertaking"), by or
on behalf of the indemnitee, to repay all amounts so
advanced if it is ultimately determined by final
judicial decision from which there is no further
right to appeal ("final adjudication") that the
indemnitee is not entitled to indemnification for
expenses under this Section B or otherwise, together
with a written affirmation by the indemnitee of his
or her good faith belief that he or she has not
breached or failed his or her duties to the
Corporation. The rights to indemnification and to the
advancement of expenses conferred in Sections A and B
of this Article VIII shall be contract rights and
such rights shall continue as to an indemnitee who
has ceased to be a director or officer and shall
inure to the benefit of the indemnitee's heirs,
executors and administrators.
C. The rights to indemnification and to advancement of
expenses conferred in this Article VIII shall not be
exclusive of any other right which any person may
have or hereafter acquire under any statute, these
Articles of Incorporation, By-laws, agreement, vote
of shareholders or directors, or otherwise.
D. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer,
employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or
loss, regardless of whether the Corporation would
have the power to indemnify such person against such
expense, liability or loss under the WBCL.
E. The Corporation may, as authorized from time to time
by a majority vote of disinterested directors, grant
indemnification and advancement of expenses to any
employee or agent of the Corporation or any person
who is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of
another corporation, including, without limitation,
any subsidiary of the Corporation, partnership, joint
venture, trust or other enterprise, including service
with respect to an employee benefit plan, to the
fullest
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extent of this Article VIII permits indemnification
and advancement of expenses for directors and
officers of the Corporation.
"Article IX. Limitation of Liability."
A. A director of this Corporation shall not be
personally liable to the Corporation or its
shareholders, or any person asserting rights on
behalf of the Corporation or its shareholders, for
monetary damages for breach or failure to perform any
duty resulting from his or her status unless the
person asserting liability proves that the breach or
failure to perform constitutes (i) a willful failure
to deal fairly with the Corporation or its
shareholders in a matter in which the director has a
material conflict of interest; (ii) a violation of
criminal law, unless the director had reasonable
cause to believe his or her conduct was lawful; (iii)
a transaction from which the director received an
improper personal benefit; or (iv) willful
misconduct. If the WBCL is hereafter amended to
authorize corporate action further eliminating or
limiting the personal liability of directors, the
liability of directors of the Corporation shall be
eliminated or limited to the fullest extent permitted
by such law as amended.
Any repeal or modification of the foregoing paragraph
by shareholders of the Corporation shall not
adversely affect any right or protection of a
director existing at the time of such repeal or
modification.
The directors and officers of the Company are included in the
directors' and officers' liability insurance policy applicable to St. Francis
Bank, F.S.B., the Company's wholly-owned federally-chartered stock savings bank
subsidiary ("St. Francis Bank"). The Company has not obtained substitute or
additional directors' and officers' liability coverage for liability which may
be incurred in their capacity as such. St. Francis Bank's insurance policy
provides that, subject to the applicable liability limits and retention amounts,
the insurer will reimburse directors and officers of St. Francis Bank for a
"loss" (as defined in the policy) sustained by a director or officer resulting
from any claim made against them for a "wrongful act" (as defined in the
policy). The policy also provides that, subject to the applicable liability
limits and retention amounts, the insurer will reimburse St. Francis Bank for a
loss for which St. Francis Bank has lawfully indemnified (or is required or
permitted by law to indemnify) a director or officer resulting from any such
claim. Subject to certain exclusions set forth in the policy, "wrongful act" is
defined to mean any actual or alleged error, misstatement, misleading statement,
act or omission, or neglect or breach of duty by the directors or officers in
the discharge of their duties solely in their capacities as such directors or
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the
Exhibit Index on page 9 of this Registration Statement, which Exhibit Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
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<PAGE> 7
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the Offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
St. Francis Capital Corporation has duly caused this Post-Effective Amendment
No. 1 on Form S-8 to the Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Brookfield,
State of Wisconsin on March 31, 1999.
ST. FRANCIS CAPITAL CORPORATION
By: /s/ Thomas R. Perz
----------------------------------------
Thomas R. Perz, President and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
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SIGNATURE TITLE DATE
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/s/ Thomas R. Perz President, Chief Executive
- ------------------ Officer and Director (Principal
Thomas R. Perz Executive and Operating Officer)
/s/ Jon D. Sorenson* Chief Financial Officer and
- -------------------- Treasurer (Principal Financial
Jon D. Sorenson and Accounting Officer)
/s/ John C. Schlosser* Chairman of the Board and
- ---------------------- Director
John C. Schlosser
/s/ David J. Drury* Director
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David J. Drury
/s/ Rudolph T. Hoppe* Director
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Rudolph T. Hoppe
March 31, 1999
/s/ Edward W. Mentzer* Director
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Edward W. Mentzer
/s/ Jeffrey A. Reigle* Director
- ----------------------
Jeffrey A. Reigle
/s/ Julia H. Taylor* Director
- --------------------
Julia H. Taylor
/s/ Edmund O. Templeton* Director
- ------------------------
Edmund O. Templeton
* By: /s/ Thomas R. Perz
----------------------------------
Thomas R. Perz, Attorney-in-fact
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EXHIBIT INDEX
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PAGE NUMBER IN
REGULATION S-K SEQUENTIALLY
EXHIBIT NO. DESCRIPTION OF DOCUMENT NUMBERED COPY
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Exhibit 2.1 Agreement and Plan of Reorganization, dated as of
June 30, 1998, by and between St. Francis Capital
Corporation and Reliance Banchsares, Inc. (1)
Exhibit 4 Reliance Bancshares, Inc. 1997 Stock Option Plan....................
Exhibit 5 Opinion of Michael Best & Friedrich LLP.............................
Exhibit 23.1 Consent of KPMG LLP.................................................
Exhibit 23.2 Consent of Michael Best & Friedrich LLP (included in Exhibit 5)
Exhibit 24 Power of Attorney (1)
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(1) Incorporated by reference to the Company's Registration Statement on
Form S-4 (File No. 333-64621) filed with the Commission on September
29, 1998.
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EXHIBIT 4
021997
RELIANCE BANCSHARES, INC.
1997 STOCK OPTION PLAN
1. PURPOSE.
The purpose of the Reliance Bancshares, Inc. (the "Holding Company")
1997 Stock Option Plan (the "Plan") is to advance the interests of the Holding
Company and its shareholders by providing those key employees and directors of
the Holding Company and its Affiliates, including Reliance Savings Bank (the
"Bank"), upon whose judgment, initiative and efforts the successful conduct of
the business of the Holding Company and its affiliates largely depends, with
additional incentive to perform in a superior manner. A purpose of the Plan is
also to attract people of experience and ability to the service of the Holding
Company and its Affiliates.
2. DEFINITIONS.
(a) "Affiliate" means (i) a member of a controlled group of
corporations of which the Holding Company is a member or (ii) an unincorporated
trade or business which is under common control with the Holding Company as
determined in accordance with Section 414(c) of the Internal Revenue Code of
1986, as amended, (the "Code") and the regulations issued thereunder. For
purposes hereof, a "controlled group of corporations" shall mean a controlled
group of corporations as defined in Section 1563(a) of the Code determined
without regard to Section 1563(a)(4) and (e)(3)(C).
(b) "Award" means a grant of Non-statutory Stock Options or Incentive
Stock Options under the provisions of this Plan.
(c) "Board of Directors" or "Board" means the board of directors of the
Holding Company.
(d) "Change in Control" of the Holding Company means a Change in
Control of a nature that: (i) would be required to be reported in response to
Item 1 of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"); or (ii) results in a Change in Control of the Bank or the
Holding Company within the meaning of the Home Owners Loan Act of 1933 and the
Rules and Regulations promulgated by the Office of Thrift Supervision (or its
predecessor agency), as in effect on the effective date of this Plan; or (iii)
without limitation shall be deemed to have occurred at such time as (a) any
"person" (as the term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Bank or the Holding
Company representing 25% or more of the Bank's or the
<PAGE> 2
Holding Company's outstanding securities ordinarily having the right to vote at
the election of directors except for any securities of the Bank purchased by the
Holding Company in connection with the conversion of the Bank to the stock form
and any securities purchased by the Bank's employee stock benefit plans; or (b)
individuals who constitute the Board on the date hereof (the "Incumbent Board"),
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Holding Company's
shareholders was approved by the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause (b), considered as though
he were a member of the Incumbent Board; or (c) a plan of reorganization, a
merger, consolidation, sale of all or substantially all the assets of the Bank
or the Holding Company or similar transaction in which the Bank or Holding
Company is not the surviving institution is approved by shareholders and becomes
effective; or (d) a proxy statement soliciting proxies from stockholders of the
Holding Company, by someone other than the current management of the Holding
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Holding Company or the Bank or similar transaction with one
or more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or Property or securities not issued by the Bank or the
Holding Company shall be distributed and shareholders approve the action
disclosed in the proxy materials.
(e) "Committee" means a committee consisting of two or more
Non-Employee Directors appointed by the Board pursuant to Section 3 hereof.
"Non-Employee Director," as defined in Rule 16b-3 promulgated by the Securities
and Exchange Commission ("SEC") under the Exchange Act, means a director who (i)
is not currently an officer or otherwise employed by the Holding Company or the
Bank, or a parent or other subsidiary of the Holding Company, (ii) does not
receive compensation for consulting services or in any other capacity from the
Holding Company or the Bank in excess of $60,000 in any one year, and (iii) does
not possess an interest in and is not engaged in business relationships required
to be reported under Items 404(a) or 404(b) of Regulation S-K promulgated under
the Exchange Act.
(f) "Common Stock" means the Common Stock of the Holding Company, par
value, $1.00 per share.
(g) "Date of Grant" means the date an Award is effective pursuant to
the terms hereof.
2
<PAGE> 3
(h) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an Employee to perform the work
customarily assigned to him and the inability of an Outside Director to perform
the services customarily performed by an Outside Director. Additionally, a
medical doctor selected or approved by the Committee must advise the Committee
that it is either not possible to determine when such Disability will terminate
or that it appears probable that such Disability will be permanent during the
remainder of said participant's lifetime.
(i) "Employee" means any person who is currently employed by the
Holding Company or any Affiliate.
(j) "Fair Market Value" means, when used in connection with the Common
Stock on a certain date, the closing price as reported by the National
Association of Securities Dealers Automated Quotation System (as published by
the Wall Street Journal, if published) on such date or if the Common Stock was
not traded on such date, on the next preceding day on which the Common Stock was
traded thereon or the last previous date on which a sale is reported.
(k) "Incentive Stock Option" means an Option granted by the Committee
to a Participant, which Option is designed as an Incentive Stock Option pursuant
to Section 8 of this Plan.
(l) "Non-statutory Stock Option" means an Option granted to a
participant and which is not an Incentive Stock Option.
(m) "Option" means an Award granted under Section 7 or Section 8 of
this Plan.
(n) "Outside Director" means a member of the Board of Directors of the
Holding Company or the Bank, not also serving as an Employee of the Holding
Company or any of its Affiliates.
(o) "Participant" means an employee of the Holding Company or its
affiliates chosen by the Committee to participate in the Plan, or an Outside
Director.
(p) "Plan Year(s)" means a calendar year or years commencing on or
after January 1, 1997.
(q) "Termination for Cause" means the termination upon personal
dishonesty, incompetence, willful misconduct, any breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, or the
willful violation of any law, rule or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order or the material breach of
any provisions of an Employee's employment contract.
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3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it sees necessary for the proper administration of the Plan and
to make whatever determinations and interpretations in connection with the Plan
it sees as necessary or advisable with respect to Participants. All
determinations and interpretations made by the Committee shall be binding and
conclusive on such Participants and on their legal representatives and
beneficiaries.
4. TYPES OF AWARDS.
Awards under the Plan may be granted in any one or a combination of:
(a) Non-statutory Stock Options; and
(b) Incentive Stock Options;
as defined in paragraphs 7 and 8 of the Plan.
5. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 14, the maximum number of
shares reserved for purchase pursuant to the exercise of options granted under
the Plan is 256,234 shares of Common Stock of the Holding Company, par value
$1.00 per share. These shares of Common Stock may be either authorized but
unissued shares or shares previously issued and reacquired by the Holding
Company. To the extent that options are granted under the Plan, the shares
underlying such options will be unavailable for future grants under the Plan
except that, to the extent that options granted under the Plan terminate, expire
or are canceled without having been exercised new Awards may be made with
respect to these shares.
6. ELIGIBILITY.
Officers and other Employees (including Employees who are also
directors of the Holding Company or its Affiliates) shall be eligible to receive
Incentive Stock Options and Non-statutory Stock Options under the Plan. Outside
Directors shall be eligible to receive Non-statutory Stock Options under the
Plan.
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7. NON-STATUTORY STOCK OPTIONS.
7.1 Grant of Non-statutory Stock Options.
(a) Grants to Employees. The Committee may, from time to time, grant
Non-statutory Stock Options to Employees and, upon such terms and conditions as
the Committee may determine, grant Non-statutory Stock Options in exchange for
and upon surrender of previously granted Awards under this Plan.
(b) Grants to Outside Directors. The Board may, from time to time,
grant Non-statutory Stock Options to Outside Directors and, upon such terms and
conditions as the Board may determine, grant Non-statutory Stock Options in
exchange for and upon surrender of previously granted Awards under this Plan.
(c) Terms of Non-Statutory Options. Non-statutory Stock Options granted
under this Plan are subject to the following terms and conditions:
(i) Price. The purchase price per share of Common Stock deliverable
upon the exercise of each Non-statutory Stock Option shall be determined on the
date the option is granted. Such purchase price shall be the Fair Market Value
of the Holding Company's Common Stock on the Date of Grant or such greater
amount as determined by the Committee with respect to Employees or by the Board
with respect to Outside Directors. Shares may be purchased only upon full
payment of the purchase price. Payment of the purchase price may be made, in
whole or in part, through the surrender of shares of the Common Stock of the
Holding Company at the Fair Market Value of such shares on the date of surrender
determined in the manner described in Section 2(j) of the Plan.
(ii) Terms of Options. The term during which each Non-statutory
Stock Option may be exercised shall be 10 years from the Date of Grant, or such
shorter period determined by the Committee with respect to Employees or by the
Board with respect to Outside Directors. The Committee shall determine with
respect to Employees, and the Board shall determine with respect to Outside
Directors the date on which each Non-statutory Stock Option shall become
exercisable and may provide that a Non-statutory Stock Option shall become
exercisable in installments. The shares comprising each installment may be
purchased in whole or in part at any time after such installment becomes
purchasable. The Committee may, in its sole discretion, accelerate the time at
which any Non-statutory Stock Option granted to an Employee may be exercised in
whole or in part. The Board may, in its sole discretion accelerate the time at
which any Non-statutory Stock Option granted to an Outside Director may be
exercised in whole or in part. Notwithstanding the above, in the event of a
Change in Control of the Holding Company, all Non-statutory Stock Options shall
become immediately exercisable.
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(iii) Termination of Service. Upon the termination of a
Participant's service for any reason other than Disability, death, retirement or
Termination for Cause, the Participant's Non-statutory Stock Options shall be
exercisable only as to those shares which were immediately purchasable by the
Participant at the date of termination and only for a period of three months
following termination. In the event of Termination for Cause, all rights under
the Participant's Non-statutory Stock Options shall expire upon termination. In
the event of the death, retirement or Disability of any Participant or a Change
in Control, all Non-statutory Stock Options held by the Participant, whether or
not exercisable at such time, shall be exercisable by the Participant or his
legal representatives or beneficiaries of the Participant for one year or such
longer period as determined by the Committee following the date of the
Participant's death, or cessation of service due to Disability or retirement, or
following a Change in Control; provided that in no event shall the period extend
beyond the expiration of the Non-statutory Stock Option term. For purposes of
this Section a Participant who has served as both an Employee and as a member of
the Board of Directors shall have terminated service only when he has terminated
service as both an Employee and a director. The Committee (with respect to
Employees) and the Board (with respect to Outside Directors) at the time of
grant or thereafter, may extend the period of non-statutory Stock Option
exercise on a Participant's termination of service to a period not exceeding 5
years, provided that in no event shall the period extend beyond the expiration
of the non-statutory Stock Option term.
8. INCENTIVE STOCK OPTIONS.
8.1 Grant of Incentive Stock Options.
The Committee may, from time to time, grant Incentive Stock Options to
Employees. Incentive Stock Options granted pursuant to the Plan shall be subject
to the following terms and conditions:
(a) Price. The purchase price per share of Common Stock deliverable
upon the exercise of each Incentive Stock Option shall be not less than 100% of
the Fair Market Value of the Holding Company's Common Stock on the Date of
Grant. However, if a Participant owns Common Stock possessing more than 10% of
the total combined voting power of all classes of Common Stock of the Holding
Company (or under Section 425(d) of the Code is deemed to own Common Stock
representing more than 10% of the total combined voting power of all such
classes of Common Stock), the purchase price per share of Common Stock
deliverable upon the exercise of each Incentive Stock Option shall not be less
than 110% of the Fair Market Value of the Holding Company's Common Stock on the
Date of Grant. Payment of the purchase price may be made, in whole or in
part, through the surrender of shares of the Common Stock of the
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Holding Company at the Fair Market Value of such shares on the date of surrender
determined in the manner described in Section 2(j).
(b) Amounts of Options. Incentive Stock Options may be granted to any
Employee in such amounts as determined by the Committee. In the case of an
option intended to qualify as an Incentive Stock Option, the aggregate Fair
Market Value (determined as of the time the option is granted) of the Common
Stock with respect to which Incentive Stock Options granted are exercisable for
the first time by the Participant during any calendar year (under all plans of
the Participant's employer corporation and its parent and subsidiary
corporations) shall not exceed $100,000. The provisions of this Section 8.1(b)
shall be construed and applied in accordance with Section 422(d) of the Code and
the regulations, if any, promulgated thereunder. To the extent an award under
this Section 8.1 exceeds this $100,000 limit, the portion of the award in excess
of such limit shall be deemed a Non-statutory Stock Option.
(c) Terms of Options. The term during which each Incentive Stock Option
may be exercised shall be determined by the Committee, but in no event shall an
Incentive Stock Option be exercisable in whole or in part more than 10 years
from the Date of Grant. If at the time an Incentive Stock Option is granted to
an Employee, the Employee owns Common Stock representing more than 10% of the
total combined voting power of the Holding Company (or, under Section 425(d) of
the Code, is deemed to own Common Stock representing more than 10% of the total
combined voting power of all such classes of Common Stock) the Incentive Stock
Option granted to such Employee shall not be exercisable after the expiration of
five years from the Date of Grant. No Incentive Stock Option granted under this
Plan is transferable except by will or the laws of descent and distribution and
is exercisable in his lifetime only by the Employee to whom it is granted.
The Committee shall determine the date on which each Incentive Stock
Option shall become exercisable and may provide that an Incentive Stock Option
shall become exercisable in installments. The shares comprising each installment
may be purchased in whole or in part at any time after such installment becomes
purchasable, provided that the amount able to be first exercised in a given year
is consistent with the terms of Section 422 of the Code. The Committee may, in
its sole discretion, accelerate the time at which any Incentive Stock Option may
be exercised in whole or in part, provided that it is consistent with the terms
of Section 422 of the Code. Notwithstanding the above, in the event of a Change
in Control of the Holding Company, all Incentive Stock Options shall become
immediately exercisable.
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(d) Termination of Employment. Upon the termination of a Participant's
service for any reason other than Disability, Change in Control, death,
retirement or Termination for Cause, the Incentive Stock Options shall be
exercisable only as to those shares which were immediately purchasable by the
Participant at the date of termination and only for a period of three months
following termination. In the event of Termination for Cause all rights under
the Participant's Incentive Stock Options shall expire upon termination.
In the event of death, retirement or Disability of any Employee, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such time, shall be exercisable by the Participant or the Participant's legal
representatives or beneficiaries for one year following the date of the
Participant's death, retirement or cessation of employment due to Disability;
provided, however, that such option shall not be eligible for treatment as an
Incentive Stock Option in the event such option is exercised more than three
months following the date of the Participant's cessation of employment. Upon
termination of the Participant's service due to a Change in Control, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such time, shall be exercisable for a period of one year following the date of
Participant's cessation of employment; provided however, that such option shall
not be eligible for treatment as an Incentive Stock Option in the event such
option is exercised more than three months following the date of the
Participant's cessation of employment. In no event shall the exercise period
extend beyond the expiration of the Incentive Stock Option term. For purposes of
this Section a Participant who has served as both an Employee and as a member of
the Board of Directors shall have terminated service only when he has terminated
service as both an Employee and a director.
The Committee, at the time of grant or thereafter, may extend the
period Incentive Stock Option exercise on a Participant's termination of service
to a period not exceeding 5 years, provided, however, that such option shall not
be eligible for treatment as an Incentive Stock Option in the event such option
is exercised more than three months following the date of the Participant's
cessation of employment. Notwithstanding anything to the contrary contained
herein, in no event shall the exercise period extend beyond the expiration of
the Incentive Stock Option term.
(e) Compliance with Code. The options granted under this Section 8 of
the Plan are intended to qualify as incentive stock options within the meaning
of Section 422 of the Code, but the Holding Company makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code.
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9. SURRENDER OPTION.
In the event of a Participant's termination of employment (or service
as a Director), the Participant (or the Participant's Personal
representative(s), heir(s), or devisee(s)) may, in a form acceptable to the
Committee make application to surrender all or part of options held by such
Participant in exchange for a cash payment from the Holding Company of an amount
equal to the difference between the Fair Market Value of the Common Stock on the
date of termination and the exercise price per share of the option on the Date
of Grant. Whether the Committee accepts such application or determines to make
payment, in whole or part, is within its absolute and sole discretion, it being
expressly understood that the Committee is under no obligation to any
Participant whatsoever to make such payments. In the event that the Committee
accepts such application and the Holding Company determines to make payment,
such payment shall be in lieu of the exercise of the underlying option and such
option shall cease to be exercisable.
10. RIGHTS OF A SHAREHOLDER; LIMITED TRANSFERABILITY.
No Participant shall have any rights as a shareholder with respect to
any shares covered by a Non-statutory and/or Incentive Stock Option until the
date of issuance of a stock certificate for such shares. Nothing in this Plan or
in any Award granted confers on any person any right to continue in the employ
of the Holding Company or its Affiliates or to continue to perform services for
the Holding Company or its Affiliates or interferes in any way with the right of
the Holding Company or its Affiliates to terminate a Participant's services as
an officer or other Employee at any time.
No Incentive Stock Option granted under this Plan is transferable
except by will or the laws of descent and distribution and is exercisable in his
or her lifetime only by the Participant to whom it is granted.
Non-statutory Stock Options granted hereunder may be exercised only
during a Participant's lifetime by the Participant, the Participant's guardian
or legal representative or by a permissible transferee. Non-statutory Stock
Options shall be transferable by Participants pursuant to the laws of descent
and distribution upon a Participant's death, and during a Participant's
lifetime, Non- statutory Stock Options shall be transferable by Participants to
members of their immediate family, trusts for the benefit of members of their
immediate family, and charitable institutions ("permissible transferee") to the
extent permitted under Section 16 of the Exchange Act and subject to federal and
state securities laws. The term "immediate family" shall mean any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
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mother-in-law, father-in-law, son-in-law, sister-in-law, or brother-in-law and
shall include adoptive relationships.
The Committee shall have the authority to establish rules and
regulations specifically governing the transfer of stock options granted under
this Plan as it deems necessary and advisable.
11. AGREEMENT WITH GRANTEES.
Each Award of Options will be evidenced by a written agreement,
executed by the Participant and the Holding Company or its Affiliates which
describes the conditions for receiving the Awards including the date of Award,
the purchase price if any, applicable periods, and any other terms and
conditions as may be required by applicable securities law.
12. DESIGNATION OF BENEFICIARY.
A Participant may, with the consent of the Committee, designate a
person or persons to receive, in the event of death, any stock option Award to
which the Participant would then be entitled. Such designation will be made upon
forms supplied by and delivered to the Holding Company and may be revoked in
writing. If a Participant fails effectively to designate a beneficiary, then the
Participant's estate will be deemed to be the beneficiary.
13. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding shares of Common Stock of
the Holding Company by reason of any stock dividend or split, recapitalization,
merger, consolidation, spin-off, reorganization, combination or exchange of
shares, or other similar corporate change, or other increase or decrease in such
shares without receipt or payment of consideration by the Holding Company, the
Committee will make such adjustments to previously granted Awards, to prevent
dilution or enlargement of the rights of the Participant, including any or all
of the following:
(a) adjustments in the aggregate number or kind of shares of Common
Stock which may be awarded under the Plan;
(b) adjustments in the aggregate number or kind of shares of Common
Stock covered by Awards already made under the Plan;
(c) adjustments in the purchase price of outstanding Incentive and/or
Non-statutory Stock Options.
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No such adjustments may, however, materially change the value of
benefits available to a Participant under a previously granted Award.
14. WITHHOLDING.
There may be deducted from each distribution of cash and/or Common
Stock under the Plan the amount of tax required by any governmental authority to
be withheld.
15. AMENDMENT OF THE PLAN.
The Board of Directors may at any time, and from time to time, modify
or amend the Plan in any respect; provided however, that Sections 7.1 and 8.1
governing grants shall not be amended more than once every six months other than
to comport with the Code or the Employee Retirement Income Security Act of 1974,
as amended, if applicable.
The Board may determine that shareholder approval of any amendment to
this Plan may be advisable for any reason, including but not limited to, for the
purpose of obtaining or retaining any statutory or regulatory benefits under
tax, securities or other laws or satisfying applicable stock exchange listing
requirements.
No such termination, modification or amendment may affect the rights of
a Participant under an outstanding Award.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as of the date the Plan is approved by
shareholders at an annual or special meeting of shareholders (the "Effective
Date"). The Plan also shall be presented to shareholders of the Holding Company
for ratification for purposes of: (i) satisfying one of the requirements of
Section 422 of the Code governing the tax treatment for Incentive Stock Options;
and (ii) maintaining listing on the NASDAQ National Market System.
17. TERMINATION OF THE PLAN.
No Awards under the Plan shall be granted more than ten (10)
years after the Effective Date of the Plan. The Board of Directors
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has the right to suspend or terminate the Plan at any time. No termination
shall, without the consent of a Participant, adversely affect such individual's
rights under a previously granted award.
Notwithstanding the prohibitions on the adjustments and amendments
which materially change the value of benefit available to a Participant under a
previously granted Award contained in Sections 13 and 15, the Board may, in
connection with a Change in Control, terminate the Plan and require the
Participants to accept cash equal to the difference between the price at which
Common Stock may be purchased through the Participant's Option and the value of
cash or stock consideration received by shareholders of the Holding Company in
connection with the Change in Control.
18. APPLICABLE LAW.
The Plan will be administered in accordance with the laws of the State
of Wisconsin to the extent not Preempted by Federal law as now or hereafter in
effect.
19. COMPLIANCE WITH SECTION 16.
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provision of the Plan or action by the Committee fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
- --------------------------- ------------------------------
Date Adopted (Signature)
Title
- -------------------------- ------------------------------
Date Approved by Secretary
Stockholders
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EXHIBIT 5
[MICHAEL BEST & FREIDRICH LLP]
April 2, 1999
St. Francis Capital Corporation
13400 Bishops Lane, Suite 350
Brookfield, Wisconsin 53005-6203
Gentlemen:
We have served as your counsel in connection with the filing by you of
a registration statement on Form S-8 filed as a Post-Effective Amendment No. 1
to the Registration Statement on Form S-4 ("Registration Statement") with the
Securities and Exchange Commission ("Commission") pursuant to the provisions of
the Securities Act of 1933, as amended (the "Act"), covering the registration of
62,024 shares of common stock, $0.01 par value per share ("Common Stock"), of
St. Francis Capital Corporation ("St. Francis"). As your counsel, we have
examined such records and other documents as we deemed necessary for the
purposes of this opinion and considered such questions of law as we believe to
be involved. Based upon such examination and consideration, it is our opinion
that:
1. The total authorized capital stock of St. Francis consists of
24,000,000 shares of common stock having a par value of $0.01 per share,
6,000,000 shares of preferred stock having a par value of $0.01 per share, of
which 240,000 shares have been designated as Series A Junior Participating
Preferred Stock; and
2. The Common Stock, assuming the issuance thereof following and in
compliance with the registration thereof with the Commission, and assuming the
Common Stock will be offered and sold in the manner described in the
Registration Statement, will be duly authorized and validly issued, fully paid
and nonassessable, except as provided by Section 180.0622 of the Wisconsin
Statutes which may require further assessment for unpaid wages to employees
under certain circumstances.
Pursuant to the requirements of the Act, we hereby consent to the use
of this opinion in connection with the registration with the Commission of the
shares of Common Stock.
Very truly yours,
MICHAEL BEST & FRIEDRICH LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
St. Francis Capital Corporation:
We consent to the use of our report incorporated herein by reference.
KPMG LLP
Milwaukee, Wisconsin
April 1, 1999
