Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________________________
FCB FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1760287
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
420 South Koeller Street 54902
Oshkosh, Wisconsin (Zip Code)
(Address of principal executive offices)
FCB Financial Corp. 1998 Incentive Stock Plan
(Full title of the plan)
James J. Rothenbach Copy to:
President and Chief Executive Officer
FCB Financial Corp. Jay O. Rothman
420 South Koeller Street Foley & Lardner
Oshkosh, Wisconsin 54902 777 East Wisconsin Avenue
(920) 236-3680 Milwaukee, Wisconsin 53202-5367
(Name, address, including zip code, (414) 271-2400
and telephone number, including area
code, of agent for service)
_______________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to Price Offering Registration
Registered Be Registered Per Share(1) Price(1) Fee
Common Stock, 250,000
$.01 par value shares $29.50 $7,375,000 $2,176
(1) Estimated pursuant to Rule 457 under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee based
on the average of the high and low sale prices for FCB Financial Corp.
Common Stock on The Nasdaq Stock Market on August 20, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by FCB
Financial Corp. (the "Company") are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended
March 31, 1998.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998.
3. The description of the Company's Common Stock, $.01 par
value, contained in Item 1 of the Company's Registration Statement on Form
8-A, dated July 12, 1993, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended, after the date of filing of this Registration Statement
and prior to such time as the Company files a post-effective amendment to
this Registration Statement which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of 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.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his or her
duties to the Company and such breach or failure constituted: (a) a
willful failure to deal fairly with the Company or its shareholders in
connection with a matter in which the director or officer had a material
conflict of interest; (b) a violation of the criminal law unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was
unlawful; (c) a transaction from which the director or officer derived an
improper personal profit; or (d) willful misconduct. It should be noted
that the Wisconsin Business Corporation Law specifically states that it is
the public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) FCB Financial Corp. 1998 Incentive Stock
Plan
(4.2) Form of Non-Qualified Stock Option
Agreement for Employees
(4.3) Form of Non-Qualified Stock Option
Agreement for Directors
(4.4) Provisions of Articles of Incorporation of
FCB Financial Corp. defining the rights of
holders of capital stock (incorporated by
reference to Exhibit 3.1 to FCB Financial
Corp.'s Form S-1 Registration Statement
(Registration No. 33-63204))
(4.5) Provisions of the By-Laws of FCB Financial
Corp. defining the rights of holders of
capital stock (incorporated by reference
to Exhibit 3.2 to FCB Financial Corp.'s
Form S-1 Registration Statement
(Registration No. 33-63204))
(5) Opinion of Foley & Lardner
(23.1) Consent of Wipfli Ullrich Bertelson CPAs
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page
to this Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(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;
(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) do not apply
if 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 Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended, that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Oshkosh, State of Wisconsin
on August 26, 1998.
FCB FINANCIAL CORP.
By: /s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints Donald D. Parker, James J.
Rothenbach and Phillip J. Schoofs, and each of them individually, his true
and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures Title Date
/s/ James J. Rothenbach President, Chief Executive August 26, 1998
James J. Rothenbach Officer and Director
(Principal Executive Officer)
/s/ Donald D. Parker Chairman of the Board and August 26, 1998
Donald D. Parker Director
/s/ Phillip J. Schoofs Vice President, Treasurer and August 26, 1998
Phillip J. Schoofs Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Richard A. Bergstrom Director August 26, 1998
Richard A. Bergstrom
/s/ Thomas C. Butterbrodt Director August 26, 1998
Thomas C. Butterbrodt
/s/ Dr. Edwin L. Downing Director August 26, 1998
Dr. Edwin L. Downing
/s/ Walter H. Drew Director August 26, 1998
Walter H. Drew
/s/ David L. Erdmann Director August 26, 1998
David L. Erdmann
/s/ David L. Geurden Director August 26, 1998
David L. Geurden
/s/ David L. Omanchinski Director August 26, 1998
David L. Omachinski
/s/ William A. Raaths Director August 26, 1998
William A. Raaths
/s/ William J. Schmidt Director August 26, 1998
William J. Schmidt
/s/ Ronald L. Tenpas Director August 26, 1998
Ronald L. Tenpas
<PAGE>
EXHIBIT INDEX
FCB FINANCIAL CORP. 1998 INCENTIVE STOCK PLAN
Exhibit No. Exhibit
(4.1) FCB Financial Corp. 1998 Incentive Stock Plan
(4.2) Form of Non-Qualified Stock Option Agreement
for Employees
(4.3) Form of Non-Qualified Stock Option Agreement
for Directors
(4.4) Provisions of Articles of Incorporation of FCB
Financial Corp. defining the rights of holders
of capital stock (incorporated by reference to
Exhibit 3.1 to FCB Financial Corp.'s Form S-1
Registration Statement (Registration No. 33-
63204)
(4.5) Provisions of the By-Laws of FCB Financial
Corp. defining the rights of holders of
capital stock (incorporated by reference to
Exhibit 3.2 to FCB Financial Corp.'s Form S-1
Registration Statement (Registration No. 33-
63204))
(5) Opinion of Foley & Lardner
(23.1) Consent of Wipfli Ullrich Bertelson CPAs
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
Exhibit 4.1
FCB FINANCIAL CORP.
1998 INCENTIVE STOCK PLAN
Section 1. Purpose
The purpose of the FCB Financial Corp. 1998 Incentive Stock Plan
(the "Plan") is to promote the best interests of FCB Financial Corp.
(together with any successor thereto (the "Company")), its holders and its
Subsidiaries as defined in the Internal Revenue Code of 1986, as amended
(the "Code"), and any entities of which at least 20% of the equity
interest is held directly or indirectly by the Company (together
"Affiliates"), by encouraging and providing for the acquisition of an
equity interest in the success of the Company by directors, officers and
key employees and by enabling the Company and its Affiliates to attract
and retain the services of directors, officers and key employees upon
whose judgment, interest, skills, and special effort the successful
conduct of their operations is largely dependent.
Section 2. Effective Date
The Plan shall become effective on April 27, 1998, subject,
however, to the approval of the Plan by the shareholders of the Company at
the next annual meeting of shareholders within twelve months following the
date of adoption of the Plan by the Board of Directors of the Company (the
"Board").
Section 3. Administration
The Plan shall be administered by a committee (the "Committee")
of the Board, consisting of not less than two directors, each of whom
shall qualify as a "non-employee director" within the meaning of
Rule 16b-3 ("Rule 16b-3") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and as an "outside director" under
Section 162(m)(4)(C) of the Code or any successor provisions thereto. If
at any time the Committee shall not be in existence, the Board shall
administer the Plan and all references to the Committee herein shall
include the Board. To the extent permitted by applicable law, the Board
may delegate to another committee of the Board or to one or more senior
officers of the Company any or all of the authority and responsibility of
the Committee with respect to the Plan, other than with respect to
participants who are subject to Section 16 of the Exchange Act
("Section 16 participants"). To the extent that the Board has delegated
to such other committee or one or more officers the authority and
responsibility of the Committee, all references to the Committee herein
shall include such other committee or one or more officers.
Subject to the terms of the Plan and applicable law, the
Committee shall have full power and authority to interpret and administer
the Plan and any instrument or agreement relating to, or made under, the
Plan; establish, amend, suspend, or waive such rules and regulations and
appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and make any other determination, including
factual determinations, and take any other action that the Committee deems
necessary or desirable for the administration of the Plan. The
Committee's decisions and determinations under the Plan need not be
uniform and may be made selectively among participants, whether or not
they are similarly situated. A majority of the members of the Committee
shall constitute a quorum and all determinations of the Committee shall be
made by a majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of the Committee members. The Committee's
interpretation of the Plan and all determinations made by the Committee
pursuant to the powers vested in it hereunder shall be conclusive and
binding on all persons having any interests in the Plan or in any awards
granted hereunder.
Section 4. Eligibility and Participation
Participants in the Plan shall be selected by the Committee from
among those directors, officers and key employees of the Company and its
Affiliates, as the Committee may designate from time to time. The
Committee shall consider such factors as it deems appropriate in selecting
participants and in determining the type and amount of their respective
awards. The Committee's designation of a participant in any year shall
not require the Committee to designate such person to receive an award in
any other year.
Section 5. Stock Subject to Plan
5.1 Number. Subject to adjustment as provided in Section 5.3,
the total number of shares of Common Stock of the Company, par value of
$.01 per share (the "Stock"), which may be issued under the Plan shall be
250,000. No participant shall be granted benefits under the Plan that
could result in such participant (i) receiving in any single fiscal year
of the Company options for, and/or stock appreciation rights with respect
to, more than 25,000 shares of Stock; (ii) receiving benefits in any
single fiscal year of the Company relating to more than 25,000 shares of
Stock as restricted stock; (iii) receiving more than 25,000 performance
shares in any single fiscal year of the Company; or (iv) receiving
performance units exceeding $25,000 in value in any single fiscal year of
the Company. Such number of shares of Stock as specified in the preceding
sentence shall be subject to adjustment in accordance with the terms of
Section 5.3 hereof. It is intended that all determinations under this
Section 5 shall be made in a manner that is consistent with the exemption
for performance-based compensation provided by Section 162(m) of the Code
(or any successor provision thereto) and any regulations promulgated
thereunder, unless otherwise determined by the Committee. The shares to
be delivered under the Plan may consist, in whole or in part, of
authorized but unissued Stock or treasury Stock.
5.2 Unused Stock: Unexercised Rights. If, after the effective
date of the Plan, any shares of Stock covered by an award granted under
the Plan, or to which any award relates, are forfeited or if an award
otherwise terminates, expires or is canceled prior to the delivery of all
of the shares of Stock or of other consideration issuable or payable
pursuant to such award, then the number of shares of Stock counted against
the number of shares available under the Plan in connection with the grant
of such award shall again be available for the granting of additional
awards under the Plan to the extent determined to be appropriate by the
Committee.
5.3 Adjustment in Capitalization. In the event that the
Committee shall determine that any dividend or other distribution (whether
in the form of cash, Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase or
exchange of Stock or other securities of the Company, issuance of warrants
or other rights to purchase Stock or other securities of the Company, or
other similar corporate transaction or event affects the Stock such that
an adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee may, in
such manner as it may deem equitable, adjust any or all of (i) the number
and type of shares of Stock subject to the Plan and which thereafter may
be made the subject of awards under the Plan; (ii) the number and type of
shares of Stock subject to outstanding awards; and (iii) the grant,
purchase or exercise price with respect to any award, or, if deemed
appropriate, make provision for a cash payment to the holder of an
outstanding award; provided, however, in each case, that with respect to
awards of incentive stock options no such adjustment shall be authorized
to the extent that such authority would cause such options to cease to be
treated as incentive stock options; and provided further, that the number
of shares of Stock subject to any award payable or denominated in Stock
shall always be a whole number. Any fractional shares resulting from such
adjustment shall be eliminated.
Section 6. Term of the Plan
No award shall be granted under the Plan after April 26, 2008.
However, unless otherwise expressly provided in an applicable award
agreement, any award theretofore granted may extend beyond such date and,
to the extent set forth in the Plan, the termination of the Plan shall not
affect authority of the Committee with respect to any such award or the
authority of the Board to amend the Plan.
Section 7. Stock Options
7.1 Grant of Options. Options may be granted to participants
at any time and from time to time as shall be determined by the Committee.
The Committee shall have complete discretion in determining the number,
terms and conditions of options granted to a participant. The Committee
also shall determine whether an option is to be an incentive stock option
within the meaning of Section 422 of the Code or a nonqualified stock
option; provided, however, that an incentive stock option may only be
granted to employees of the Company or a "subsidiary corporation" within
the meaning of Section 424 of the Code.
7.2 Incentive Stock Options. Except as otherwise required by
the Code, incentive stock options will be exercisable at purchase prices
of not less than one hundred percent (100%) of the fair market value of
the Stock on the date of grant, as such fair market value is determined by
such methods or procedures as shall be established from time to time by
the Committee ("Fair Market Value"). In all other respects, the terms of
any incentive stock option granted under the Plan shall be as determined
by the Committee but shall comply with the provisions of Section 422 of
the Code (or any successor provision thereto) and any regulations
promulgated thereunder.
7.3 Nonqualified Stock Options. Nonqualified stock options
will be exercisable at purchase prices of not less than one hundred
percent (100%) of the Fair Market Value of the Stock on the date of grant,
unless otherwise determined by the Committee. Nonqualified stock options
will be exercisable at such times and subject to such terms and conditions
as determined by the Committee at the time of grant or thereafter.
7.4 Award Agreement. The award agreement evidencing each
option shall specify the type of option granted, the option price, the
duration of the option, the number of shares of Stock to which the option
pertains and such other provisions as the Committee shall determine.
7.5 Fair Market Value. The Fair Market Value of the Stock
shall be determined by such methods or procedures as shall be established
from time to time by the Committee; provided, however, that the Fair
Market Value shall not be less than the par value of the Stock.
7.6 Payment. The Committee shall determine the methods and the
forms for payment of the purchase price of options, including (a) by
delivery of cash or other shares or securities of the Company having a
then Fair Market Value equal to the purchase price of such shares; or
(b) by delivery (including by fax) to the Company or its designated agent
of an executed irrevocable option exercise form together with irrevocable
instructions to a broker-dealer to sell or margin a sufficient portion of
the Stock and deliver the sale or margin loan proceeds directly to the
Company to pay the purchase price.
7.7 Certain Replacement Options. Without in any way limiting
the authority of the Committee to make grants of options to participants
hereunder, and in order to induce participants to retain ownership of the
Stock acquired upon the exercise of options, the Committee shall have the
authority (but not an obligation) to include within any agreement setting
forth the terms of any options (or any amendment thereto) a provision
entitling a participant to further options ("Replacement Options") in the
event the participant exercises any options (including a Replacement
Option) under the Plan, in whole or in part, by surrendering previously
acquired shares of Stock. Any such Replacement Options shall (a) be
nonqualified stock options, exercisable at a purchase price, unless
otherwise determined by the Committee, of 100% of the Fair Market Value of
the shares of Stock on the date the Replacement Options are granted,
(b) be for a number of shares of Stock equal to the number of shares
surrendered, (c) only become exercisable on the terms specified by the
Committee in the event the participant holds, for a minimum period of time
prescribed by the Committee, the shares of Stock the participant acquired
upon the exercise in connection with which the Replacement Options were
issued, and (d) be subject to such other terms and conditions as the
Committee may determine.
Section 8. Stock Appreciation Rights
8.1 Grant of Stock Appreciation Rights. Stock appreciation
rights may be granted to participants. A stock appreciation right may
relate to a specific option granted under the Plan and may, in such case,
relate to all or part of the option shares covered by the related option,
or may be granted independently of any option granted under the Plan.
Notwithstanding the foregoing, stock appreciation rights related to an
incentive stock option may only be granted at the same time as the grant
of such option. Subject to the terms of the Plan, the grant price, term,
calculation of Fair Market Value, methods of exercise, methods of
settlement and any other terms and conditions of any stock appreciation
right shall be as determined by the Committee.
8.2 Exercise or Maturity of Stock Appreciation Rights. The
Committee may impose such conditions or restrictions on the exercise of
any stock appreciation right as it may deem appropriate. Unless otherwise
determined by the Committee, stock appreciation rights that relate to a
specific option granted under the Plan shall be exercisable or shall
mature at such time or times, on the conditions and to the extent and in
the proportion that any related option is exercisable, and may be
exercised or mature for all or part of the shares of Stock subject to the
related option.
8.3 Effect of Exercise. Upon exercise of any number of stock
appreciation rights, the number of option shares subject to any related
option shall be reduced accordingly and such option shares may not again
be available for delivery under the Plan. The exercise of any number of
options shall result in an equivalent reduction in the number of option
shares covered by the related stock appreciation right and such shares may
not again be available for delivery under the Plan; provided, however,
that if a stock appreciation right was granted for less than all of the
option shares covered by any related option, any such reduction shall be
made at such time as, and only to the extent that, the number of shares
exercised under the related option exceeds the number of option shares not
covered by the stock appreciation right.
8.4 Payment of Stock Appreciation Right Amount. Subject to the
terms of the Plan and any applicable agreement with a participant, upon
exercise or maturity of a stock appreciation right, the holder shall be
entitled to receive payment of an amount determined by multiplying:
(a) The difference between the Fair Market Value of a
share of Stock at the date of exercise over the grant price of
the stock appreciation right as determined by the Committee, by
(b) The number of shares of Stock with respect to which
the stock appreciation right is exercised.
Section 9. Restricted Stock
9.1 Awards. The Committee is hereby authorized to issue
restricted stock to participants, with or without payment therefor, as
additional compensation, or in lieu of other compensation, for their
services to the Company and/or any Affiliate; provided, however, that the
aggregate number of shares of restricted stock granted to all participants
under the Plan as a group shall not exceed 50,000 (such number of shares
subject to adjustment in accordance with the terms of Section 5.3 hereof).
Restricted stock shall be subject to such terms and conditions as the
Committee determines appropriate, including, without limitation,
restrictions on sale or other disposition and rights of the Company to
reacquire such restricted stock upon termination of the participant's
employment within specified periods, as prescribed by the Committee.
9.2 Other Restrictions. Without limitation, such terms and
conditions may provide that restricted stock shall be subject to
forfeiture if the Company or the participant fails to achieve certain
goals established by the Committee over a designated period of time. The
goals established by the Committee may relate to any one or more of the
following: interest income, earnings per share, return on shareholder
equity, share price, economic value added and/or, in the case of
participants other than Section 16 participants, such other goals as may
be established by the Committee in its discretion. In the event the
minimum goal established by the Committee is not achieved at the
conclusion of a period, all shares of restricted stock shall be forfeited.
In the event the maximum goal is achieved, no shares of restricted stock
shall be forfeited. Partial achievement of the maximum goal may result in
forfeiture corresponding to the degree of nonachievement to the extent
specified in writing by the Committee when the grant is made. The
Committee shall certify in writing as to the degree of achievement after
completion of the performance period.
9.3 Registration. Any restricted stock granted under the Plan
to a participant may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or
issuance of a stock certificate or certificates. In the event any stock
certificate is issued in respect of shares of restricted stock granted
under the Plan to a participant, such certificate shall be registered in
the name of the participant and shall bear an appropriate legend (as
determined by the Committee) referring to the terms, conditions and
restrictions applicable to such restricted stock.
9.4 Other Rights. Unless otherwise determined by the
Committee, during the period of restriction, participants holding shares
of restricted stock granted hereunder may exercise full voting rights with
respect to those shares and shall be entitled to receive all dividends and
other distributions paid or made with respect to those shares while they
are so held; provided, however, that the Committee may provide in any
grant of shares of restricted stock that payment of dividends thereon may
be deferred until termination of the period of restriction and may be made
subject to the same restrictions regarding forfeiture as apply to such
shares of restricted stock. If any such dividends or distributions are
paid in shares of Stock, the shares shall be subject to the same
restrictions on transferability as the shares of restricted stock with
respect to which they were paid.
9.5 Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment of a participant with the
Company or an Affiliate (as determined under criteria established by the
Committee) for any reason during the applicable period of restriction, all
shares of restricted stock still subject to restriction shall be forfeited
by the participant to the Company; provided, however, that the Committee
may, when it finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining restrictions with
respect to shares of restricted stock held by a participant.
Section 10. Performance Shares and Performance Units
10.1 Issuance. The Committee is hereby authorized to grant
performance shares and performance units to participants. Subject to
Section 5.1, the Committee shall have complete discretion in determining
the number of performance units and performance shares granted to a
participant.
10.2 Performance Shares. The Committee may grant performance
shares that the participant may earn in whole or in part if the Company or
the participant achieves certain goals established by the Committee over a
designated period of time consisting of one or more full fiscal years of
the Company, but not in any event more than ten (10) years. The goals
established by the Committee may relate to any one or more of the
following: interest income, earnings per share, return on shareholder
equity, share price, economic value added and/or, in the case of
participants other than Section 16 participants, such other goals as may
be established by the Committee in its discretion. In the event the
minimum goal established by the Committee is not achieved at the
conclusion of a period, no delivery of performance shares shall be made to
the participant. In the event the maximum goal is achieved, one hundred
percent (100%) of the performance shares shall be delivered to the
participant. Partial achievement of the maximum goal may result in a
delivery corresponding to the degree of achievement to the extent
specified in writing by the Committee when the grant is made. The
Committee shall certify in writing as to the degree of achievement after
completion of the performance period. The Committee shall have the
discretion to satisfy an obligation to deliver a participant's performance
shares by delivery of less than the number of performance shares earned
together with a cash payment equal to the then Fair Market Value of the
shares not delivered. The number of shares of Stock reserved for issuance
under the Plan shall be reduced only by the number of shares delivered in
respect of earned performance shares. Subject to Section 15(a)(iii), at
the time of making an award of performance shares, the Committee shall set
forth the consequences of the termination of a participant's employment
with the Company or an Affiliate prior to the expiration of the designated
performance period in respect of which the performance shares are awarded.
10.3 Performance Units. The Committee may grant performance
units to a participant that consist of monetary units and that the
participant may earn in whole or in part if the Company or the participant
achieves certain goals established by the Committee over a designated
period of time consisting of one or more full fiscal years of the Company,
but not in any event more than ten (10) years. The goals established by
the Committee may relate to any one or more of the following: interest
income, earnings per share, return on shareholder equity, economic value
added, share price and/or, in the case of participants other than
Section 16 participants, such other goals as may be established by the
Committee in its discretion. In the event the minimum goal established by
the Committee is not achieved at the conclusion of a period, no payment
shall be made to the participant. In the event the maximum goal is
achieved, one hundred percent (100%) of the monetary value of the
performance units shall be paid to the participant. Partial achievement
of the maximum goals may result in a payment corresponding to the degree
of achievement to the extent specified in writing by the Committee when
the grant is made. The Committee shall certify in writing as to the
degree of achievement after completion of the performance period. Payment
of a performance unit earned may be in cash or in shares of Stock or in a
combination of both, as the Committee in its sole discretion determines.
The number of shares of Stock reserved for issuance under this Plan shall
be reduced only by the number of shares delivered in payment of
performance units. Subject to Section 15(a)(iii), at the time of making
an award of performance units, the Committee shall set forth the
consequences of the termination of a participant's employment with the
Company or an Affiliate prior to the expiration of the designated
performance period in respect of which the performance units are awarded.
Section 11. Bonus Shares
The Committee is authorized to provide participants the
opportunity to elect to receive shares of Stock in lieu of a portion or
all of any cash bonuses under the Company's incentive compensation
programs and/or increases in base compensation. Bonus shares shall be
issued in an amount equal to (a) the equivalent dollar amount of bonus a
participant has elected to receive in Stock (subject to limits prescribed
by the Committee) divided by (b) the Fair Market Value of a share of Stock
(as determined by the Committee in advance or on the date the cash
compensation to which the bonus shares relate would otherwise be payable)
and shall be subject to such terms and conditions as the Committee deems
appropriate, including, without limitation, restrictions on sale or other
disposition.
Section 12. Other Awards
12.1 Other Stock-Based Awards. Other awards, valued in whole or
in part by reference to, or otherwise based on, shares of Stock, may be
granted either alone or in addition to or in conjunction with other awards
for such consideration, if any, and in such amounts and having such terms
and conditions as the Committee may determine.
12.2 Other Benefits. The Committee shall have the right to
provide types of benefits under the Plan in addition to those specifically
listed, if the Committee believes that such benefits would further the
purposes for which the Plan was established.
Section 13. Transferability
Each award granted under the Plan shall not be transferable
other than by will or the laws of descent and distribution, except that a
participant may, to the extent allowed by the Committee and in a manner
specified by the Committee, (a) designate in writing a beneficiary to
exercise the award after the participant's death; or (b) transfer any
award to the extent permitted by the Code.
Section 14. Rights of Participants
Nothing in the Plan shall interfere with or limit in any way the
right of the Company or any Affiliate to terminate any participant's
employment or service at any time nor confer upon any participant any
right to continue in the employ or as a director of the Company or any
Affiliate.
Section 15. Change of Control
(a) In the event of a "Change of Control" (as hereinafter
defined):
(i) each holder of an option or stock appreciation right
shall have the right at any time thereafter to exercise the
option or stock appreciation right in full whether or not the
option or stock appreciation right was theretofore exercisable;
(ii) all restrictions imposed upon restricted stock shall
lapse upon the date of the Change of Control;
(iii) each holder of a performance share and/or
performance unit for which the performance period has not
expired shall have the right, exercisable by written notice to
the Company within 60 days after the Change of Control, to
receive, in exchange for the surrender of the performance share
and/or performance unit, an amount of cash equal to the product
of the value of the performance share and/or performance unit
and a fraction, the numerator of which is the number of whole
months which have elapsed from the beginning of the performance
period to the date of the Change of Control and the denominator
of which is the number of whole months in the performance
period; and
(iv) each holder of a performance share and/or performance
unit that has been earned but not yet paid shall receive an
amount of cash equal to the value of the performance share
and/or performance unit.
For purposes of this Section 15, the "value" of a performance share shall
be equal to the highest of (1) the Fair Market Value of a share of Stock
on the date of the Change of Control, (2) the highest price per share of
Stock paid in the transaction giving rise to the Change of Control, or
(3) the Fair Market Value of a share of Stock calculated on the date of
surrender or payment, as the case may be.
(b) A "Change of Control" of the Company shall be deemed to
have occurred for purposes of this Section 15 if the event set forth in
any one of the following paragraphs shall have occurred:
(i) any "Person" (as such term is defined in
Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that for purposes of
this Section 15, the term "Person" shall not include (1) the
Company or any of its subsidiaries, (2) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, (3) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly,
by the shareholders of the Company in substantially the same
proportions as their ownership of stock in the Company) is or
becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by
such Person any securities acquired directly from the Company or
its affiliates) representing 20% or more of either the then
outstanding shares of Stock of the Company or the combined
voting power of the Company's then outstanding voting
securities; notwithstanding the foregoing, a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any
security under this subparagraph (i) as a result of an
agreement, arrangement or understanding to vote such security if
the agreement, arrangement or understanding (A) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
under the Exchange Act and (B) is not also then reportable on a
Schedule 13D or 13G under the Exchange Act (or any comparable or
successor report);
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on April 27, 1998, constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A under the
Exchange Act) whose appointment or election by the Board or
nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors on April 27, 1998
or whose appointment, election or nomination for election was
previously so approved; or
(iii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation or
approve the issuance of voting securities of the Company in
connection with a merger or consolidation of the Company (or any
direct or indirect subsidiary of the Company) pursuant to
applicable stock exchange requirements, other than (1) a merger
or consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) at least 51% of the
combined voting power of the voting securities of the Company or
such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (2) a merger
or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates) representing 20% or
more of either the then outstanding shares of Stock of the
Company or the combined voting power of the Company's then
outstanding voting securities; or
(iv) the shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (in one transaction or
a series of related transactions within any period of
24 consecutive months), other than a sale or disposition by the
Company of all or substantially all of the Company's assets to
an entity, at least 75% of the combined voting power of the
voting securities of which are owned by Persons in substantially
the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, no "Change of Control" shall be deemed to
have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of
the Stock of the Company immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets
of the Company immediately following such transaction or series of
transactions.
(c) The Committee may, in its sole and absolute discretion,
amend, modify or rescind the provisions of this Section 15 if it
determines that the operation of this Section 15 may prevent a transaction
in which the Company or any Affiliate is a party from being accounted for
on a pooling-of-interests basis.
Section 16. Amendment, Modification and Termination of Plan
16.1 Amendments and Termination. The Board may at any time
amend, alter, suspend, discontinue or terminate the Plan; provided,
however, that shareholder approval of any amendment of the Plan shall be
obtained if otherwise required by (i) the Code or any rules promulgated
thereunder (in order to allow for incentive stock options to be granted
under the Plan or to enable the Company to comply with the provisions of
Section 162(m) of the Code so that the Company can deduct compensation in
excess of the limitation set forth therein), or (ii) the listing
requirements of the principal securities exchange or market on which the
Stock is then traded (in order to maintain the listing or quotation of the
Stock thereon). To the extent permitted by applicable law, the Committee
may also amend the Plan, provided that any such amendments shall be
reported to the Board. Termination of the Plan shall not affect the
rights of participants with respect to awards previously granted to them,
and all unexpired awards shall continue in force and effect after
termination of the Plan except as they may lapse or be terminated by their
own terms and conditions.
16.2 Waiver of Conditions. The Committee may, in whole or in
part, waive any conditions or other restrictions with respect to any award
granted under the Plan.
Section 17. Taxes
The Company shall be entitled to withhold the amount of any tax
attributable to any amount payable or shares of Stock deliverable under
the Plan after giving the person entitled to receive such amount or shares
of Stock notice as far in advance as practicable, and the Company may
defer making payment or delivery if any such tax may be pending unless and
until indemnified to its satisfaction. The Committee may, in its
discretion and subject to such rules as it may adopt, permit a participant
to pay all or a portion of the federal, state and local withholding taxes
arising in connection with (a) the exercise of a nonqualified stock
option, (b) a disqualifying disposition of Stock received upon the
exercise of an incentive stock option, (c) the lapse of restrictions on
restricted stock, or (d) the receipt of performance shares, by electing to
(i) have the Company withhold shares of Stock, (ii) tender back shares of
Stock received in connection with such benefit, or (iii) deliver other
previously owned shares of Stock, having a Fair Market Value equal to the
amount to be withheld; provided, however, that the amount to be withheld
shall not exceed the participant's estimated total federal, state and
local tax obligations associated with the transaction. The election must
be made on or before the date as of which the amount of tax to be withheld
is determined and otherwise as required by the Committee. The Fair Market
Value of fractional shares of Stock remaining after payment of the
withholding taxes shall be paid to the participant in cash.
The Committee may, in its discretion, grant a cash bonus to a
participant who holds restricted stock or performance shares to enable the
participant to pay all or a portion of the federal, state or local tax
liability incurred by the participant upon the vesting of restricted stock
or performance shares. The Company shall deduct from any cash bonus such
amount as may be required for the purpose of satisfying the Company's
obligation to withhold federal, state or local taxes.
Section 18. Miscellaneous
18.1 Other Provisions. The grant of any award under the Plan
may also be subject to other provisions (whether or not applicable to the
benefit awarded to any other participant) as the Committee determines
appropriate, including, without limitation, provisions for (a) one or more
means to enable participants to defer recognition of taxable income
relating to awards or cash payments derived therefrom, which means may
provide for a return to a participant on amounts deferred as determined by
the Committee (provided that no such deferral means may result in an
increase in the number of shares of Stock issuable hereunder); (b) the
purchase of Stock under options in installments; (c) the financing of the
purchase of Stock under the options in the form of a promissory note
issued to the Company by a participant on such terms and conditions as the
Committee determines; (d) restrictions on resale or other disposition; and
(e) compliance with federal or state securities laws and stock exchange or
market requirements.
18.2 Award Agreement. No person shall have any rights under any
award granted under the Plan unless and until the Company and the
participant to whom the award was granted shall have executed an award
agreement in such form as shall have been approved by the Committee.
Section 19. Legal Construction
19.1 Requirements of Law. The granting of awards under the Plan
and the issuance of shares of Stock in connection with an award shall be
subject to all applicable laws, rules and regulations, and to such
approvals by any governmental agencies or national securities exchanges as
may be required.
19.2 Governing Law. The Plan, and all agreements hereunder,
shall be construed in accordance with and governed by the laws of the
State of Wisconsin.
19.3 Severability. If any provision of the Plan or any award
agreement or any award is or becomes or is deemed to be invalid, illegal
or unenforceable in any jurisdiction, or as to any person or award, or
would disqualify the Plan, any award agreement or any award under any law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan, any award agreement
or the award, such provision shall be stricken as to such jurisdiction,
person or award, and the remainder of the Plan, any such award agreement
and any such award shall remain in full force and effect.
Exhibit 4.2
FCB FINANCIAL CORP. 1998 INCENTIVE STOCK PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT, dated as of this ____ day of __________, ____,
by and between FCB Financial Corp., a Wisconsin corporation (the
"Corporation"), and ________________ (the "Participant").
W I T N E S S E T H :
WHEREAS, the Corporation has adopted the FCB Financial Corp.
1998 Incentive Stock Plan (the "Plan"), the terms of which, to the extent
not stated herein, are specifically incorporated by reference into this
Agreement; and
WHEREAS, the Plan is administered by the Compensation Committee
of the Corporation's Board of Directors (the "Committee"); and
WHEREAS, one of the purposes of the Plan is to permit the
granting of options to purchase shares of the Corporation's Common Stock,
$.01 par value (the "Shares"), to officers and employees of the
Corporation and/or its Affiliates (as such term is defined in the Plan)
who, in the opinion of the Committee, have the capacity for contributing
to the successful performance of the Corporation and its Affiliates; and
WHEREAS, the Participant has been determined by the Committee to
have the capacity for contributing to the successful performance of the
Corporation and its Affiliates and the Corporation desires to secure or
increase his or her stock ownership in the Corporation as an added
incentive for such Participant to continue his or her association with the
Corporation; and
WHEREAS, the Committee granted to the Participant on
______________________ (the "Grant Date") an option (the "Option") to
purchase Shares under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Grant of Option. Subject to the terms and conditions of
the Plan and this Agreement, the Committee granted to the Participant on
the Grant Date the Option to purchase from the Corporation all or any part
of the aggregate amount of ________ Shares (the "Optioned Shares"). The
Option is intended to constitute a non-qualified stock option and shall
not be treated as an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended.
2. Option Price. The price to be paid for the Optioned Shares
shall be $_____ per share (the "Exercise Price"), which was the Fair
Market Value (as determined by the Committee) of a Share on the Grant
Date.
3. Exercisability and Termination of Option. The Option shall
become exercisable as to 20% of the Optioned Shares after one year has
elapsed after the Grant Date and an additional 20% shall become
exercisable after the end of each subsequent year such that the Option is
fully exercisable after five years have elapsed after the Grant Date. The
Option shall terminate on the earlier of: (i) __________________;
(ii) one year after the death of the Participant; or (iii) three months
(unless otherwise determined by the Committee at any time) after the
Participant ceases to be an employee of the Corporation and any Affiliate
for any reason (including total or partial disability and normal or early
retirement, but excluding death and termination of employment by the
Corporation or any Affiliate for "Cause," as defined below). If the
employment of the Participant is terminated for Cause, all rights of the
Participant under this Agreement shall expire immediately upon the giving
to the Participant of notice of such termination. To the extent the
Option may be exercised following cessation of the Participant's
employment, it will be exercisable only to the extent the Participant was
entitled to exercise the Option at the time of such cessation.
For purposes of this Agreement, the term "Cause" shall mean
personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
or the willful violation of any law, rule, regulation (other than traffic
violations or similar offenses) or final cease and desist order which
results in a loss to the Corporation or any Affiliate.
4. Manner of Exercise and Payment. To exercise the Option in
whole or in part, the Participant shall give written notice to the
Secretary of the Corporation at the Corporation's principal office in
Oshkosh, Wisconsin specifying the number of Optioned Shares with respect
to which the Participant elects to exercise the Option together with full
payment of the Exercise Price. The date of exercise shall be the date on
which such notice is received by the Corporation. Payment shall be made
either (i) in cash (including check, bank draft or money order) or (ii) by
delivering (A) Shares already owned by the Participant and having a Fair
Market Value as of the date of exercise equal to the applicable Exercise
Price, such Fair Market Value to be determined in the manner as
established by the Committee, or (B) a combination of cash and such
Shares. The Committee may elect, following the death of the Participant,
as an alternative means of settlement of the Option, to pay in cash to the
person to whom the Option is transferred by will or by the laws of descent
and distribution the amount by which the Fair Market Value per Share on
the date of exercise of the Option exceeds the Exercise Price, multiplied
by the number of Shares with respect to which the Option is properly
exercised. Any such settlement of the Option shall be considered an
exercise of the Option for all purposes of the Plan.
5. Assignments and Transfers. The Option may not be assigned,
encumbered or transferred except, in the event of the death of the
Participant, by will or the laws of descent and distribution.
6. Withholding Tax. The Corporation may deduct and withhold
from any cash otherwise payable to the Participant such amount as may be
required for the purpose of satisfying any obligation the Corporation may
have to withhold Federal, state or local taxes; provided, however, that
the amount withheld shall not exceed the Participant's estimated total
Federal, state and local taxes related to the exercise of the Option. The
Participant may satisfy the Corporation's withholding tax requirements by
electing in writing on a form prescribed by the Committee to have
the Corporation withhold Shares otherwise issuable to the Participant or
to deliver to the Corporation Shares having a Fair Market Value on the
date income is recognized pursuant to the exercise of the Option equal to
the amount to be withheld.
7. Adjustments Affecting the Shares. In the event of an
adjustment in the Corporation's capitalization, the number of Optioned
Shares and the Exercise Price may be subject to adjustment in the manner
contemplated by the Plan.
8. Effect of Change of Control on the Option. Subject to the
terms of the Plan, in the event of a Change of Control (as defined in the
Plan), the Option (to the extent not previously exercised or then
exercisable) shall become immediately exercisable in full. The Committee
may, in its sole and absolute discretion, amend, modify or rescind the
foregoing provision of this Section 8 if it determines that the operation
of this Section 8 may prevent a transaction in which the Corporation or
any Affiliate is a party from being accounted for on a pooling-of-
interests basis.
9. Transfer Restrictions. Shares acquired upon the exercise
of the Option may not be sold or otherwise disposed of except pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, or in a transaction which, in the opinion of counsel for the
Corporation, is exempt from registration under said Act.
10. Status of Participant. The Option shall not confer upon
the Participant the right to continue as an employee of the Corporation or
any Affiliate.
11. Plan is Controlling. The Option shall be subject in all
respects to the terms and conditions of the Plan, which shall be
controlling.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed by its duly authorized officers and the Participant has
hereunto affixed his or her hand and seal as of the day and year first
above written.
FCB FINANCIAL CORP.
By:
Attest:
[SEAL]
, Participant
Exhibit 4.3
FCB FINANCIAL CORP. 1998 INCENTIVE STOCK PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR DIRECTORS
THIS AGREEMENT, dated as of this ____ day of __________, by and
between FCB Financial Corp., a Wisconsin corporation (the "Corporation"),
and ________________ (the "Participant").
W I T N E S S E T H :
WHEREAS, the Corporation has adopted the FCB Financial Corp.
1998 Incentive Stock Plan (the "Plan"), the terms of which, to the extent
not stated herein, are specifically incorporated by reference into this
Agreement; and
WHEREAS, one of the purposes of the Plan is to permit the
granting of options to purchase shares of the Corporation's Common Stock,
$.01 par value (the "Shares"), to members of the Corporation's Board of
Directors (a "Director"); and
WHEREAS, the Participant is a Director, and the Corporation
desires the Participant to continue as a member of the Corporation's Board
of Directors and to secure or increase his or her stock ownership in the
Corporation as an added incentive for the Participant to continue his or
her association with the Corporation; and
WHEREAS, the Participant was granted on __________________ (the
"Grant Date") an option (the "Option") to purchase Shares under the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Grant of Option. Subject to the terms and conditions of
the Plan and this Agreement, the Participant was granted on the Grant Date
the Option to purchase from the Corporation all or any part of the
aggregate amount of ______ Shares (the "Optioned Shares"). The Option is
intended to constitute a non-qualified stock option and shall not be
treated as an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended.
2. Option Price. The price to be paid for the Optioned Shares
shall be $_____ per share (the "Exercise Price").
3. Exercisability and Termination of Option. The Option shall
become exercisable as to 20% of the Optioned Shares after one year has
elapsed after the Grant Date and an additional 20% shall become
exercisable after the end of each subsequent year such that the Option is
fully exercisable after five years have elapsed after the Grant Date;
provided, however, that the Option shall (subject to the terms of the
Plan) become fully exercisable (i) upon retirement of the Participant as a
director of the Corporation after age 70, (ii) upon early retirement of
the Participant as a director of the Corporation after age 65, in the
event that the Participant has served as a director of the Corporation
and/or of Fox Cities Bank (or any predecessor thereof) for at least 10
years at the time of such retirement, (iii) in the event of the
Participant's disability or death while serving as a director, or (iv)
upon a Change of Control (as defined in the Plan) of the Corporation. The
Option to the extent not theretofore exercised shall terminate on the
earlier of: (i) __________________ or (ii) three months after the
Participant ceases to be a director of the Corporation.
4. Manner of Exercise and Payment. To exercise the Option in
whole or in part, the Participant shall give written notice to the
Secretary of the Corporation at the Corporation's principal office in
Oshkosh, Wisconsin specifying the number of Optioned Shares with respect
to which the Participant elects to exercise the Option together with full
payment of the Exercise Price. The date of exercise shall be the date on
which such notice is received by the Corporation. Payment shall be made in
cash (including check, bank draft or money order).
5. Assignments and Transfers. The Option may not be assigned,
encumbered or transferred except, in the event of the death of the
Participant, by will or the laws of descent and distribution.
6. Withholding Tax. The Corporation may deduct and withhold
from any cash otherwise payable to the Participant such amount as may be
required, if any, for the purpose of satisfying any obligation the
Corporation may have to withhold Federal, state or local taxes.
7. Adjustments Affecting the Shares. In the event of an
adjustment in the Corporation's capitalization, the number of Optioned
Shares and the Exercise Price may be subject to adjustment in the manner
contemplated by the Plan.
8. Transfer Restrictions. Shares acquired upon the exercise
of the Option may not be sold or otherwise disposed of except pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, or in a transaction which, in the opinion of counsel for the
Corporation, is exempt from registration under said Act.
9. Status of Participant. The Option shall not confer upon
the Participant the right to continue as a member of the Board of
Directors of the Corporation.
10. Plan is Controlling. The Option shall be subject in all
respects to the terms and conditions of the Plan, which shall be
controlling.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to
be executed by its duly authorized officers and the Participant has
hereunto affixed his or her hand and seal as of the day and year first
above written.
FCB FINANCIAL CORP.
By:
Attest:
[SEAL]
, Participant
Exhibit 5
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
August 26, 1998
FCB Financial Corp.
420 South Koeller Street
Oshkosh, Wisconsin 54902
Ladies and Gentlemen:
We have acted as counsel for FCB Financial Corp., a Wisconsin
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
250,000 shares of the Company's common stock, $.01 par value (the "Common
Stock"), which may be issued pursuant to the FCB Financial Corp. 1998
Incentive Stock Plan (the "Plan").
In connection with our representation, we have examined: (i) the
Registration Statement; (ii) the Company's Articles of Incorporation and
Bylaws, as amended to date; (iii) the Plan; and (iv) such other
proceedings, documents and records as we have deemed necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The shares of Common Stock, when issued by the Company in
the manner and for the consideration as contemplated in the Plan, will be
legally issued, fully paid and nonassessable and no personal liability
will attach to the ownership thereof, except for debts owing to employees
of the Company for services performed, but not exceeding six months'
service in any one case, as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law and as such section and its
predecessors have been judicially interpreted.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our firm therein. In
giving our consent, we do not admit that we are "experts" within the
meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23.1
[WIPFLI ULLRICH BERTELSON LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
of FCB Financial Corp. on Form S-8 (relating to the 1998 Incentive Stock
Plan) of our report dated April 17, 1998, included and incorporated by
reference in the Annual Report on Form 10-K of FCB Financial Corp. for the
year ended March 31, 1998.
/s/ Wipfli Ullrich Bertelson LLP
Certified Public Accountants
August 20, 1998
Green Bay, Wisconsin
