As filed with the Securities and Exchange Commission on October 21, 1997
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------
QUAD CITY HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 42-1397595
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2118 Middle Road
P.O. Box 395
Bettendorf, Iowa 52772
(Address of principal executive offices)
------------------
QUAD CITY HOLDINGS, INC.DEFERRED INCOME PLAN
(Full title of the plan)
------------------
Douglas M. Hultquist
Quad City Holdings, Inc.
2118 Middle Road
P.O. Box 395
Bettendorf, Iowa 52772
(Name and address of agent for service)
(319) 344-0600
(Telephone number, including area code, of agent for service)
With copies to:
Douglas J. Tucker
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive, Suite 2700
Chicago, Illinois 60606
(312) 984-3100
CALCULATION OF REGISTRATION FEE
<TABLE>
==================================== ================= =================== ===================== ===================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1)(2) per Share(3) Offering Price(2)(3) Registration
Fee(3)
==================================== ================= =================== ===================== ===================
<S> <C> <C> <C> <C>
Common Stock, $1.00 Par Value 50,000 21 3/4 1,087,500 329.55
==================================== ================= =================== ===================== ===================
<FN>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Quad City
Holdings, Inc. Deferred Income Plan (the "Plan").
(2) Pursuant to Rule 416(a) under the Securities Act, this Registration
Statement also registers such indeterminate number of additional shares as
may be issuable under the Plan in connection with share splits, share
dividends or similar transactions.
(3) Estimated pursuant to Rule 457 under the Securities Act solely for the
purpose of calculating the registration fee.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Quad City Holdings, Inc. Deferred Income
Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute (along
with the documents incorporated by reference into the Registration Statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Quad City Holdings,
Inc. (the "Company") with the Commission are hereby incorporated by reference
into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the year ended June 30, 1997
(the "Annual Report") filed by the Company (SEC File No. 0-22208) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") with the
Commission on September 29, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Annual Report referred
to in (a) above.
(c) The description of the Company's common stock, par value $1.00 per share,
contained in the Company's Registration Statement on Form 8-A (File No.
0-22208), filed with the Commission, and all amendments or reports filed
for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference into this Registration
Statement and to be a part thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Registration Statement and the prospectus
which is a part hereof (the "Prospectus") to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the Prospectus.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
In accordance with the Delaware General Corporation Law (being Chapter 1 of
Title 8 of the Delaware Code), Articles IX and X of the Registrant's certificate
of incorporation provide as follows:
NINTH: Each person who is or was a director or officer of the corporation and
each person who serves or served at the request of the corporation as a
director, officer or partner of another enterprise, shall be indemnified by the
corporation in accordance with, and to the fullest extent authorized by, the
General Corporation Law of the State of Delaware, as the same now exists or may
be hereafter amended. No amendment to or repeal of this Article IX shall apply
to or have any effect on the rights of any individual referred to in this
Article IX for or with respect to acts or omissions of such individual occurring
prior to such amendment or repeal.
TENTH: To the fullest extent permitted by the General Corporation Law of
Delaware, as the same now exists or may be hereafter amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this Article X shall apply to or have any effect on the liability or
alleged liability of any director of the corporation for or with respect to any
acts or omissions of such director occurring prior to the effective date of such
amendment or repeal.
<PAGE>
Article VII of the Registrant's bylaws further provides as follows:
Section 7.1 DIRECTORS AND OFFICERS. (a) The corporation shall indemnify any
person who was or is a party or is threatened to be made party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he or she is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless, and only to the extent that, the Court of Chancery of
the State of Delaware or the court in which action or suit was brought
shall determine upon application that, despite the adjudication of
liability and in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery of the State of Delaware or such other court shall deem
proper.
(c) To the extent that any person referred to in paragraphs (a) and (b) of this
Section 7.1 has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to therein or in defense of any
claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Section 7.1
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director or officer is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in paragraphs (a) and
(b) of this Section 7.1. Such determination shall be made (i) by the board
of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding or (ii) if such quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
(e) Expenses (including attorneys' fees) incurred in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
corporation as provided in this Section 7.1. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems
appropriate.
<PAGE>
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Section 7.1 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office.
(g) The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any
liability asserted against him or her and incurred by him or her in any
such capacity, or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him or her against such
liability under the provisions of this Section 7.1.
(h) For purposes of this Section 7.1, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan;
and references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Section 7.1.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 7.1 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
(j) Unless otherwise determined by the board of directors, references in this
section to "the corporation" shall not include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under this section with respect to the resulting
or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
Section 7.2 EMPLOYEES AND AGENTS. The board of directors may, by resolution,
extend the indemnification provisions of the foregoing Section 7.1 to any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that he or
she is or was an employee or agent of the corporation, or is or was serving at
the request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
3.1 Certificate of Incorporation, as amended, of Quad City
Holdings, Inc.
3.2 Bylaws of Quad City Holdings, Inc.
4.1 Specimen Stock Certificate of Quad City Holdings, Inc.
(See also Articles VIII, XII and XIII of Exhibit 3.1 and
Articles II, VI, IX and XII of Exhibit 3.2)
5.1 Opinion of Barack Ferrazzano Kirschbaum Perlman & Nagelberg
regarding legality of securities being registered
24.1 Consent of Barack Ferrazzano Kirschbaum Perlman & Nagelberg
(included in opinion filed as Exhibit 5.1)
24.2 Consent of McGladrey & Pullen LLP
25.1 Power of Attorney (included on the signature page of this
Registration Statement)
99.1 Quad City Holdings, Inc. Deferred Income Plan
The Plan is not generally subject to the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and is not qualified under Section 401(a) of the
Internal Revenue Code of 1986, and therefore no letter of determination
regarding qualification under ERISA will be requested from the Internal Revenue
Service.
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 the Registration Statement to include: (i)
any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement which, individually
or in the aggregate, represent a fundamental change in the information
set forth in the Registration Statement; and (iii) 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
provisions (i) and (ii) of this undertaking are inapplicable if the
information to be filed thereunder is contained in periodic reports
filed by the Company pursuant to Sections 13 or 15(d) of the Exchange
Act and incorporated by reference into the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act 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.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provision, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 of expenses incurred or paid by a
director, officer or controlling person in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
In accordance with 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 of filing on Form S-8 and authorizes this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Bettendorf, State of Iowa, on October 1, 1997.
QUAD CITY HOLDINGS, INC.
By: /s/ Douglas M. Hultquist
Douglas M. Hultquist
President and Chief Executive
Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Michael C. Bauer and Douglas M. Hultquist, and each of
them, his true and lawful attorney-in-fact and agent, each with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities (including in his capacity as a director or officer of
Quad City Holdings, Inc.) to sign any or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or any of them, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by each of the following persons in the capacities
indicated on the dates indicated below on October 1, 1997.
Signature Title
/s/ Michael A. Bauer Chairman of the Board of
Michael A. Bauer Directors
/s/ Douglas M. Hultquist President, Principal Executive,
Douglas M. Hultquist Financial and Accounting Officer
and Director
/s/ James J. Brownson Director
James J. Brownson
/s/ Richard R. Horst Director and Secretary
Richard R. Horst
/s/ Ronald G. Peterson Director
Ronald G. Peterson
/s/ John W.Schricker Director
John W. Schricker
/s/ Robert Van Vooren Director
Robert Van Vooren
<PAGE>
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administrator the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Bettendorf, State of
Iowa, on October 1, 1997.
QUAD CITY HOLDINGS, INC.
DEFERRED INCOME PLAN
By: Quad City Holdings, Inc. Board Affairs Committee
Its: Administrator
By: /s/ James J. Brownson
Its: Chairman
<PAGE>
QUAD CITY HOLDINGS, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
Incorporated
Exhibit No. Description Herein by Filed Sequential
Reference To Herewith Page No.
- -------------- ---------------------------- ------------------------------------- ----------------- ----------------
<S> <C> <C> <C> <C>
3.1 Certificate of Exhibit 3.1 to the Registration
Incorporation, as amended, Statement of Quad City Holdings,
of Quad City Holdings, Inc. Inc. on Form SB-2, File No. 33-67028
3.2 Bylaws of Quad City Exhibit 3.2 to the Registration
Holdings, Inc. Statement of Quad City Holdings,
Inc. on Form SB-2, File No. 33-67028
4.1 Articles VIII, XII and See Exhibit 3.1 to the Registration
XIII of the Quad City Statement of Quad City Holdings,
Holdings, Inc. Certificate Inc. on Form SB-2, File No. 33-67028
of Incorporation, as
amended
4.2 Articles II, VI and IX and See Exhibit 3.2 to the Registration
XII of the Quad City Statement of Quad City Holdings,
Holdings, Inc. Bylaws Inc. on Form SB-2, File No. 33-67028
5.1 Opinion of Barack X
Ferrazzano Kirschbaum
Perlman & Nagelberg
23.1 Consent of McGladrey & X
Pullen LLP
23.2 Consent of Barack Included in
Ferrazzano Kirschbaum Exhibit 5.1
Perlman & Nagelberg
24.1 Power of Attorney Included on
Signature Page
to this
Registration
Statement
99.1 Quad City Holdings, Inc. X
Deferred Income Plan
</TABLE>
Exhibit 5.1
October 17, 1997
Quad City Holdings, Inc.
2118 Middle Road
Bettendorf, Iowa 52722
Ladies and Gentlemen:
We have acted as special counsel to Quad City Holdings, Inc., a Delaware
corporation (the "Company"), in connection with the proposed offering of 50,000
shares of its common stock, $1.00 par value ("Common Shares"), pursuant to the
Company's Deferred Income Plan (the "Offering") as described in the Form S-8
Registration Statement to be filed with the Securities and Exchange Commission
(the "SEC") on or about October 17, 1997 (the "Registration Statement").
Capitalized terms used, but not defined, herein shall have the meanings given
such terms in the Registration Statement. You have requested our opinion
concerning certain matters in connection with the Offering.
We have made such legal and factual investigation as we deemed necessary for
purposes of this opinion. In our investigation, we have assumed the genuieness
of all signatures, the proper execution of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as copies and the authenticity of the originals of such copies.
In arrising at the opinions expressed below, we have reviewed and examined the
following documents:
1. The Certificate of Incorpoiration of the Company filed with the Secretary
of the State of the State of Delaware on February 4, 1993, as amended and
corrected, and the Company's Bylaws;
2. The Registration Statement, including the prospectus constituting a part
thereof (the "Prospectus");
3. Resolutions of the Board of Directors of the Company (the "Board") relating
to the Offering; and
4. A form of share certificate representing the Common Shares approved by the
Board.
We call to your attention to the fact that our firm only requires lawyers to be
qualified to practice law in the State of Illinois and, in rendering the
foregoing opinions, we express no opinion with respect to any laws relevant to
this opinion other than the Securities Act of 1933, as amended, and the rules
and regulations thereunder, the laws and regulations of the State of Illinois,
the General Corporation Law of the Sate of Delaware and United States federal
law.
Based upon the foregoing, but assuming no responsibility for the accuracy or the
completness of the data supplied by the Company and subject to the
qualifications, assumptions and limitations set forth herein, it is our opinion
that:
1. The Company has been duly organized and is validly existing in good
standing under the laws of the State of Delaware and has due corporate
authority to carry on its business as it is presently conducted.
2. The Company is authorized to issue up to 2,500,000 Common Shares, of which
1,462,824 Common Shares have been issued and are presently outstanding
prior to the Offering.
3. When the Registration Statement shall have been declared effective by order
of the SEC and the Common Shares to be sold thereunder shall have been
issued and sold upon the terms and conditions set forth in the Registration
Statement, then such Common Shares will be legally issued, fully paid and
non-assessable.
We express no opinion with respect to any specific legal issues other than those
explicitly addressed herein. We assume no obligation to advise you of any change
in the foregoing subsequent to the date of this opinion (even though the change
may affect the legal conclusion stated in this opinion letter).
We hereby consent (i) to be named in the Registration Statement, and in the
Prospectus, as attorneys who will pass upon the legality of the Common Shares to
be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the
Registration Statement.
Sincerely,
/S/ BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
Exhibit 23.1
CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement of Form S-8 of our report, dated August 1, 1997, which appears in the
Annual Report on Form 10-K of Quad City Holdings, Inc. for the year ended June
30, 1997.
/s/ McGLADREY & PULLEN, LLP
Davenport, Iowa
October 20, 1997
Exhibit 99
QUAD CITY HOLDINGS, INC.
DEFERRED INCOME PLAN
<PAGE>
QUAD CITY HOLDINGS, INC.
DEFERRED INCOME PLAN
1. PURPOSE
The purpose of the Quad City Holdings, Inc. Deferred Income Plan (the "Plan") is
to enable directors and key officers of Quad City Holdings, Inc., and any
affiliates (the "Company"), to elect to defer a portion of the fees and cash
compensation payable by the Company on account of service as a director or
employee. The Plan is intended as a means of maximizing the effectiveness and
flexibility of the compensation arrangements to directors and a select group of
management or highly compensated employees of the Company and affiliates, and as
an aid in attracting and retaining individuals of outstanding abilities and
specialized skills for service.
2. EFFECTIVE DATE
The Plan is effective as of January 1, 1997.
3. PLAN ADMINISTRATION
The Plan shall be administered by the Compensation Committee (hereinafter
referred to as the "Committee") of the Board of Directors of the Company
(hereinafter referred to as the "Board") which shall be comprised of at least
two (2) non-employee directors. A non-employee director is any member of the
Board who: (i) is not currently an officer of the Company or a related
corporation; (ii) does not receive compensation for services rendered to the
Company or a related corporation in any capacity other than as a director; (iii)
does not possess an interest in any transaction with the Company for which
disclosure would be required under the securities laws; or (iv) is not engaged
in a business relationship with the Company for which disclosure would be
required under the securities laws. The Committee shall have sole authority to
select the individuals, from among those eligible, who may participate under the
Plan and to establish all other participation requirements. The Committee is
authorized, subject to Board approval, to interpret the Plan and may from time
to time adopt such rules, regulations, forms and agreements, not inconsistent
with the provisions of the Plan, as it may deem advisable to carry out the Plan.
All decisions made by the Committee in administering the Plan shall be subject
to Board review.
4. ELIGIBILITY
Any director or key officer of the Company or any affiliate designated by the
Board is eligible to participate in the Plan; provided, however, that officers
or employees so designated shall be limited to a select group of management or
highly compensated employees within the meaning of Section 201(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Any such
director or key officer shall be a "Participant" as of the date designated by
the Board, and his or her status as a Participant shall continue until the date
of the first payment pursuant to Section 8 hereof.
5. SHARES SUBJECT TO THE PLAN
The aggregate number of shares of common stock of the Company (hereafter
referred to as "Shares") which may be distributed to directors and employees
under the Plan shall be 50,000 Shares. Any Shares that remain unissued at the
termination of the Plan shall cease to be subject to the Plan, but until
termination of the Plan, the Company shall at all times make available
sufficient Shares to meet the requirements of the Plan. The aggregate number of
Shares which may be sold under the Plan shall be adjusted to reflect a change in
capitalization of the Company, such as a stock dividend or stock split.
6. ELECTION TO DEFER INCOME
(a) In General. Each Participant shall be entitled to make an irrevocable
election to defer receipt of all or a part of the fees or compensation
payable to him or her in cash ("Income") during the calendar year following
the date of such election; provided, however, that within thirty (30) days
of first becoming a Participant, a Participant may make an election which
relates to Income otherwise payable to him or her during the calendar year
in which the election is made, provided such Income relates to services
performed after the date of the election. Such election shall continue in
effect until the Participant delivers to the Board a written revocation or
modification of such election with respect to Income related to services to
be performed for a subsequent calendar year. Income with respect to which a
deferral election has been made (and shall not have been revoked) shall be
referred to hereinafter as "Deferred Income."
<PAGE>
(b) Manner of Election. Elections to defer receipt of Income shall be made in
writing in accordance with such rules and procedures as the Committee may
prescribe, provided however that each such election to defer shall include:
(i) the amount to be deferred, expressed either as a fixed dollar amount
or a percentage of Income;
(ii) the date on which the Deferred Income shall be paid; and
(iii) the number of annual installments for the payment of Deferred Income
(maximum ten (10)).
Elections to defer receipt of base salary or fees must be made at least two (2)
months before the beginning of the calendar year for which such amounts would
otherwise be paid, elections to defer receipt of incentive compensation must be
made at least two (2) months before the incentive compensation is determined. An
election to change the date or manner of payment may not be made any later than
twelve (12) months before the "payment event" date of a Participant's most
recent election.
7. RECORD AND CREDITING OF DEFERRED AMOUNTS
(a) Deferred Income. The Company shall credit the amount of any Deferred Income
to a memorandum account for the benefit of the Participant (the "Deferred
Income Account") no later than the last day of the calendar quarter in
which such Income would otherwise have been paid to the Participant.
(b) Investment Direction. The Committee will allow a Participant to direct the
investment of his or her Deferred Income Account in accordance with such
rules and procedures as the Board may prescribe. The Company will be
relieved of all investment responsibility and liability for such investment
direction. A direction to purchase Shares may not be made within six (6)
months of a direction to sell Shares, and a direction to sell Shares may
not be made within six (6) months of a direction to purchase Shares, under
the Plan or any other plan or program maintained by the Company.
(c) Value and Statement of Account. The Committee shall provide each
Participant with a statement of the value of his or her Deferred Income
Account, including the amount of Deferred Income and income thereon,
determined as of each December 31 (the "Valuation Date").
8. PAYMENT OF DEFERRED ACCOUNT
(a) In General. No withdrawals or payment shall be made from the Participant's
Deferred Income Account except as provided in this Section 8.
(b) Payment Event. The value of a Participant's Deferred Income Account shall
be payable in either a single payment or up to ten (10) annual installments
commencing on the March 15 following the occurrence of a "payment event". A
"payment event" shall be the date specified in the Participant's deferral
election, which may be: (i) the date he or she terminates service with the
Company; (ii) the date he or she attains the age specified in the deferral
election; or (iii) the first or later to occur of either of such dates.
(c) Manner of Payment.
(i) If a Participant elects a single installment, the value of
Participant's entire Deferred Income Account as of the Valuation Date
preceding payment shall be paid to him or her in one lump sum.
(ii) If a Participant elects two or more installment payments, the amount
of an installment payment shall be a fraction of the value of the
Participant's Deferred Income Account on the Valuation Date preceding
such installment payment date, the numerator of which is one (1) and
the denominator which is the total number of installments elected
minus the number of installments previously paid.
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(d) Acceleration for Hardship. The Committee, in its sole discretion, and
whether or not a "payment event" shall have occurred, may accelerate
payment of amounts credited to a Participant's Deferred Income Account if
requested to do so and if the requirements of this paragraph (d) are met.
Such acceleration may occur only in the event of an unforeseeable financial
emergency or severe hardship from one or more recent events beyond the
control of the Participant, and is limited to the amount deemed reasonably
necessary to satisfy the emergency or hardship.
(e) Death of Participant. In the event that a Participant shall die at any time
prior to complete distribution of all amounts payable to him or her under
the provisions of the Plan, the unpaid balance of the Participant's
Deferred Income Account shall be determined as of the Valuation Date
immediately following such death, and such amount shall be payable in ten
(10) annual installments commencing on the March 15 following such
Valuation Date, or as soon as reasonably possible thereafter, to the
Participant's beneficiary or beneficiaries. The Committee in its sole
discretion may elect to pay the value of a Participant's Deferred Income
Account in a single payment following such death.
9. DESIGNATION OF BENEFICIARY
Participants shall designate in writing, in accordance with such rules and
procedures as the Committee may prescribe, the beneficiary or beneficiaries who
are to receive the Participant's Deferred Income Account in the event of the
Participant's death.
10. UNSECURED OBLIGATIONS
The obligation of the Company to make payments under the Plan shall be a general
obligation of the Company, and such payments shall be made from general assets
and property of the Company. The Participant's relationship to the Company under
the Plan shall be only that of a general unsecured creditor and neither this
Plan nor any agreement entered into hereunder or action taken pursuant hereto
shall create or be construed to create a trust or fiduciary relationship of any
kind. The Company may establish an irrevocable grantor trust for purposes of
holding and investing the Deferred Income Account balances but such
establishment shall not create any rights in or against any amount so held,
except that the trustee of such trust may vote any Shares thereunder in
accordance with the direction of the Participants.
11. AMENDMENT AND TERMINATION
The Board may amend, suspend or terminate the Plan or any portion thereof at any
time; provided, however, that no such amendment, suspension or termination shall
impair the rights of any Participant, without his consent, in such Participant's
Deferred Income Account under the Plan.
12. EFFECT OF TRANSFER
In the event that all or substantially all of the assets of the Company shall be
transferred by way of a sale, merger, consolidation or other means, the entire
unpaid balance of each Deferred Income Account shall be paid in a single lump
sum to the Participant as of the effective date thereof.
13. NON-ASSIGNABILITY
No right to receive payments under the provisions of this Plan shall be
transferable or assignable by a Participant, except by will or the laws of
descent and distribution or by gifting for the benefit of descendants in estate
planning situations, and during his or her lifetime payment may only be received
by the Participant or his or her legal representative or guardian.
14. DELIVERY AND REGISTRATION OF STOCK
The Company's obligation to deliver Shares shall, if the Committee so requests,
be conditioned upon the receipt of a representation as to the investment
intention of the individual to whom such Shares are to be delivered, in such
form as the Committee shall determine to be necessary or advisable to comply
with the provisions of the Securities Act of 1933 (the "Act") or any other
federal, state or local securities legislation or regulation. It may be provided
that any representation requirement shall become inoperative upon a registration
of the Shares or other action eliminating the necessity of such representation
under securities legislation. The Company shall not be required to deliver any
Shares under the Plan prior to (i) the admission of such Shares to listing on
any stock exchange on which Shares may then be listed, and (ii) the completion
of such registration or other qualification of such Shares under any state or
federal law, rule or regulation, as the Committee shall determine to be
necessary or advisable.
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This Plan is intended to comply with Rule 16b-3 under the Act. Any provision of
the Plan which is inconsistent with said rule shall, to the extent of such
inconsistency, be inoperative and shall not affect the validity of the remaining
provisions of the Plan.
15. BINDING PROVISIONS
All of the provisions of this Plan shall be binding upon all persons who shall
be entitled to any benefits hereunder and their heirs and personal
representatives.
16. CLAIMS PROCEDURE
If any benefits become payable under this Plan, the Participant (or designated
beneficiary in the case of the Participant's death) shall file a claim for
benefits by notifying the Committee in writing. If the claim is wholly or
partially denied, the Committee shall provide a written notice within ninety
(90) days specifying the reason for the denial, the Plan provisions on which the
denial is based, and additional material or information necessary to receive
benefits, if any. Also, such written notice shall indicate the steps to be taken
if a review of the denial is desired.
If a claim is denied and a review is desired, the Participant (or designated
beneficiary in the case of the Participant's death) shall notify the Committee
in writing within sixty (60) days after receipt of a written notice of a denial
of a claim. In requesting a review, the Participant or beneficiary may review
Plan documents and submit any written issues and comments he or she feels are
appropriate. The Committee shall then review the claim and provide a written
decision within sixty (60) days of receipt of a request for review. This
decision shall state the specific reasons for the decision and shall include
references to specific Plan provisions on which the decision is based.
17. NAMED FIDUCIARY
The Company shall be the named fiduciary, as defined under Section 402 of ERISA,
under the Plan.
