As filed with the Securities and Exchange Commission on October 15, 1996
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
HORIZON BANCORP, INC.
(Exact name of registrant as specified in its charter)
Texas 74-2412835
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation
5800 North MoPac, Austin, Texas 78731
(Address of principal executive offices) (Zip Code)
HORIZON BANCORP, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Jack A. Selman
Selman & Munson, P.C.
111 Congress Avenue, Suite 1000
Austin, Texas 78701
(Name and address of agent for service)
Office: (512) 505-5955; FAX: (512) 505-5956
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
Common Stock,
par value $0.01
per share 65,000 * $1,153,750 $397
* Estimated in accordance with Rule 457(b), solely for the purpose of
calculating the registration fee. None of the shares have been awarded,
and the shares are being registered based upon the average of the bid
and asked price of the shares of that class on the National Association of
Securities Dealers Automated Quotations System on October 11, 1996, of
$17.75 per share ($1,153,750 in the aggregate).
<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 Horizon
Bancorp, Inc. 1997 Stock Option and Incentive 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously or concurrently filed by
Horizon Bancorp, Inc. (the "Company" or the "Registrant") with the
Commission are hereby incorporated by reference in this
Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal
year ended April 30, 1996 (the "Annual Report") filed
pursuant to Rule 15d-2 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) the Company's reports on Form 10-QSB for the quarter
ended July 31, 1996, filed pursuant to the Exchange Act;
(c) all other reports filed by the Company pursuant to
Section 12 or 15(d) of the Exchange Act since the end of
the fiscal year covered by Annual Report referred
to above;
(d) the Company's Definitive Proxy Statement for its Annual
Meeting of Shareholders held on September 24, 1996;
(e) the description of the common stock, par value $0.01 per
share, of the Registrant contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-25096)
filed with the Commission on November 10, 1994 and all
amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant 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 Annual Report 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 Annual Report and 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 Annual Report and the
Prospectus.
The Company shall furnish without charge to each person to
whom the Prospectus is delivered, on the written or oral request of
such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference to the
information that is incorporated). Requests should be directed to
Paul A. Antrim, Secretary, Horizon Bancorp, Inc., 5800 North MoPac,
Austin, Texas 78731, telephone number (512) 371-0700.
All information appearing in this Annual Report and the
Prospectus is qualified in its entirety by the detailed
information, including financial statements, appearing in the
documents incorporated herein or therein by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 2.02(A) (16) of the Texas Business Corporation Act, as
amended (the "TBCA"), gives a corporation the general power to
indemnify its directors, officers, employees and agents, and to
purchase and maintain liability insurance for such persons.
Article 2.02-1 of the TBCA defines a corporation's power of
indemnification in detail, and provides in general that a
corporation may indemnify any of its officers, directors, employees
or agents (or one serving as such for another entity at the
corporation's request) who is or is threatened to be made a party
to a proceeding because the person serves or served in such a
capacity, if it is determined that the person: 1) conducted
himself in good faith; 2) reasonably believed, in the case of
conduct in an official capacity, that such conduct was in the best
interests of the corporation, and, in all other cases, that such
conduct was not opposed to the corporation's best interests; and 3)
in the case of any criminal proceeding, such person had no
reasonable cause to believe that the conduct was unlawful.
Indemnification may be provided against judgments, penalties,
fines, settlements and reasonable expenses actually incurred in the
proceedings. Persons may not be indemnified if they are found
liable because they improperly received a personal benefit or if
they are found liable to the corporation; provided, however, that
if liability is based on the fact that a personal benefit was
improperly received by such persons, limited indemnification is
permitted for reasonable expenses actually incurred in connection
with the proceeding, unless liability is based on willful or
intentional misconduct.
Any indemnification under Article 2.02-1 of the TBCA may be
made only upon a determination by 1) a majority vote of a quorum of
non-party directors; 2) if such a quorum cannot be obtained, by a
majority vote of a committee of non-party directors designated by
a majority vote of all directors; 3) by special legal counsel
selected by the non-party members of the board or of the special
committee; or 4) by the shareholders (excluding the votes of any
persons who are named parties in the proceeding).
A corporation is required under Article 2.02-1(H) of the
TBCA to indemnify a director or officer against reasonable expenses
incurred in a proceeding in which such person is named because he
or she is or was a director or officer, and such person was wholly
successful on the merits or otherwise, in the defense of the
proceeding.
Article 2.02-1(K) of the TBCA permits a corporation to advance
reasonable expenses incurred by a director, officer, employee or
agent (or one serving as such for another entity at the
corporation's request) who is or is threatened to be named as a
party in a proceeding, provided such person furnishes a written
affirmation of his or her good faith belief that the standard of
conduct necessary for indemnification has been met and a written
undertaking to repay the amount advanced if it is ultimately
determined that the standard of conduct was not met. The
undertaking to repay must be an unlimited general obligation but
need not be secured, and may be accepted without reference to any
financial ability to repay.
Article 2.02-1(R) of the TBCA provides that a corporation has
the power to purchase and maintain insurance on behalf of any
director, officer, employee or agent of the corporation, or one
serving as such for another entity at the request of the
corporation, against any liability asserted against such person
based on such a capacity or arising out of such person's status in
that capacity, whether or not the corporation would have the power
to indemnify such person under the TBCA.
The Company currently carries insurance insuring the directors
and officers of the Company against losses, which they or any of
them shall become legally obligated to pay, for any actual or
alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty by the directors and officers
in the discharge of their duties, individually or collectively, or
any claim against them solely by reason of their being directors or
officers, such insurance coverage being limited to an aggregate sum
of $1,500,000 each policy year, and such coverage being further
limited by the specific terms and provisions of the insurance
policy.
Article 2.02-1(M) of the TBCA states that any provision for a
corporation to indemnify or advance expenses to a director,
officer, employee or agent, whether contained in the articles of
incorporation, bylaws, agreement, or otherwise, is valid only to
the extent it is consistent with the provisions of 2.02-1 of the
TBCA (except as such provisions may be limited by the articles of
incorporation).
Article ELEVENTH of the Company's Articles of Incorporation
contains the following provisions for indemnification of the
Company's officers and directors:
"ELEVENTH
A. The following definitions shall apply to this
Article Eleventh.
1. "Indemnitee" means (i) any present or
former director, advisory director or officer of
the Corporation, (ii) any person who while serving in
any of the capacities referred to in clause (i) hereof
served at the Corporation's request as a director,
officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another
foreign or domestic corporation, savings and loan
association, savings bank, partnership, joint venture,
trust, employee benefit plan or other enterprise, and
(iii) any person nominated or designated by (or
pursuant to authority granted by) the Board of
Directors or any committee thereof to serve in any
of the capacities referred to in clauses (i) or (ii)
hereof.
2. "Official Capacity" means (i) when
used with respect to a director, the office of director
of the Corporation and (ii) when used with respect to
a person other than a director, the elective or
appointive office of the Corporation held by such
person or the employment or agency relationship
undertaken by such person on behalf of the Corporation,
but in each case does not include service for any
other foreign or domestic corporation, savings and
loan association, savings bank or any partnership,
joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise.
3. "Proceeding" means any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative,
arbitrative or investigative, any appeal in such
an action, suit or proceeding and any inquiry or
investigation that could lead to such an action,
suit or proceeding.
B. The Corporation shall indemnify every
Indemnitee against all judgments, penalties
(including excise and similar taxes), fines, amounts
paid in settlement and reasonable expenses actually
incurred by the Indemnitee in connection with any
Proceeding to which he was, is or is threatened to
be named defendant or respondent, or in which he was
or is a witness without being named a defendant or
respondent, by reason, in whole or in part, of his
serving or having served, or having been nominated
or designated to serve, in any of the capacities
referred to in Section A.1., if it is determined in
accordance with Section D that the Indemnitee
(a) conducted himself in good faith, (b) reasonably
believed, in the case of conduct in his Official
Capacity, that his conduct was in the Corporation's
best interests and, in all other cases, that his
conduct was at least not opposed to the Corporation's
best interests and (c) in the case of any criminal
proceeding, had no reasonable cause to believe that
his conduct was unlawful; provided, however, that in
the event a determination is made that a person
entitled to indemnification pursuant to this Section
in connection with a Proceeding brought by or on
behalf of the Corporation, such indemnification
shall be limited to the reasonable expenses
(including court costs and attorneys' fees) actually
incurred by the Indemnitee in connection with the
Proceeding. No indemnification shall be made under
this Section in respect of any judgment, penalty,
fine or amount paid in settlement in connection
with any Proceeding in which such Indemnitee shall
have been (x) found liable on the basis that benefit
resulted from an action taken in the Indemnitee's
Official Capacity or (y) found liable to the
Corporation. The termination of any Proceeding by
judgment, order, settlement or conviction, or on
a plea of nolo contendere or its equivalent, is not
of itself determinative that the Indemnitee did not
meet the requirements set forth in clauses (a), (b)
or (c) in the first sentence of this Section.
C. Without limitation of Section B and in
addition to the indemnification provided for in
Section B, the Corporation shall indemnify every
Indemnitee against reasonable expenses incurred by
such person in connection with any Proceeding in
which he is a witness or a named defendant or
respondent because he served in any of the capacities
referred to in Section A.1., if such person has been
wholly successful, on the merits or otherwise, in
defense of the Proceeding.
D. Any indemnification under Section B (unless
ordered by a court of competent jurisdiction) shall be
made by the Corporation only upon a determination
that indemnification of the Indemnitee is proper in
the circumstances because he has met the applicable
standard of conduct. Such determination shall be made
(a) by the Board of Directors by a majority vote of a
quorum consisting of directors who, at the time of
such vote, are not named defendants or respondents
in the Proceeding; (b) if such a quorum cannot be
obtained, then by a majority vote of a committee of
the Board of Directors, duly designated to act in the
matter by a majority vote of all directors (in
which designation directors who are named defendants
or respondents in the Proceeding may participate),
such committee to consist solely of two or more
directors who, at the time of the committee vote,
are not named defendants or respondents in the Proceeding;
(c) by special legal counsel selected by the Board
of Directors or a committee thereof by vote as set
forth in clauses (a) or (b) of this Section or, if
the requisite quorum of all of the directors cannot
be obtained therefor and such committee cannot be
established, by a majority vote of all of the
directors (in which directors who are named defendants
or respondents in the Proceeding may participate); or
(d) by the shareholders in a vote that excludes the
shares held by directors that are named defendants
or respondents in the Proceeding. Determination as
to reasonableness of expenses shall be made in the same
manner as the determination that indemnification
is permissible, except that if the determination
that indemnification is permissible is made by special
legal counsel, determination as to reasonableness of
expenses must be made in the manner specified in
clause (c) of the preceding sentence for the selection
of special legal counsel. In the event a determination
is made under this Section that the director or officer
has met the applicable standard of conduct as to some
matters but not as to others, amounts to be indemnified
may be reasonably prorated.
E. Reasonable expenses (including court costs
and attorneys' fees) incurred by an Indemnitee who was
or is a witness or was, is or is threatened to be made
a named defendant or respondent in a Proceeding shall
be paid by the Corporation at reasonable intervals in
advance of the final disposition of such Proceeding
after a determination is made in the manner
specified by Section D that the facts then known
to those making the determination (without undertaking
further investigation for purposes thereof) do not
establish that indemnification would be impermissible
under Section B, and upon receipt by the Corporation of
(a) a written affirmation by such Indemnitee of his good
faith belief that he has met the standard of conduct
necessary for indemnification by the Corporation under
this Article and (b) a written undertaking by or on
behalf of such Indemnitee to repay the amount paid
or reimbursed by the Corporation if it shall ultimately
be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article.
Such written undertaking shall be an unlimited
obligation of the Indemnitee but need not be secured
and it may be accepted without reference to financial
ability to make repayment. Notwithstanding any
other provision of this Article, the Corporation may
pay or reimburse expenses incurred by an Indemnitee
in connection with his appearance as a witness or
other participation in a Proceeding at a time when he
is not named a defendant or respondent in the Proceeding.
F. For purposes of this Article, the Corporation
shall be deemed to have requested an Indemnitee to serve
an employee benefit plan whenever the performance by
him of his duties to the Corporation also imposes duties
on or otherwise involves services by him to the
plan or participants or beneficiaries of the plan.
Excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law
shall be deemed fines. Action taken or omitted by
an Indemnitee with respect to an employee benefit plan
in the performance of his duties for a purpose
reasonably believed by him to be in the interest
of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not
opposed to the best interests of the Corporation.
G. The indemnification provided by this Article
shall (a) not be deemed exclusive of, or to preclude,
any other rights to which these Articles, any law,
agreement or vote of shareholders or disinterested
directors, or otherwise, or under any policy or
policies of insurance purchased and maintained
by the Corporation on behalf of any Indemnitee, both
as to action in his Official Capacity and as to action
in any other capacity, (b) continue as to a person
who has ceased to be in the capacity by reason of which
he was an Indemnitee with respect to matters arising
during the period he was in such capacity and (c) inure
to the benefit of the heirs, executors and administrators
of such a person.
H. Any indemnification of an Indemnitee or advance
of costs, charges and expenses to an Indemnitee under
the terms of this Article, shall be made promptly, and
in any event within 30 days, upon the written request
of such individual. If the Corporation denies a
written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to
such request is not made within 30 days, the right
to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any
court of competent jurisdiction. The Indemnitee's
costs and expenses incurred in connection with
successfully establishing his right to indemnification,
in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a
defense to any such action (other than an action
brought to enforce a claim for the advance of costs,
charges and expenses where the required undertaking,
if any, has been received by the Corporation) that
the claimant has not met the standard of conduct set
forth in this Article, but the burden of proving such
defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of
Directors, its independent legal counsel and its
shareholders) to have made a determination prior
to the commencement of such action that indemnification
of the claimant is proper in the circumstances because
he has met the applicable standard of conduct set
forth in this Article, nor the fact that there has
been an actual determination made by the
Corporation (including its Board of Directors, its
independent legal counsel and its shareholders)
that the claimant has not met such applicable
standard of conduct, shall be a defense to the
action or create a presumption that the claimant has
not met the applicable standard of conduct.
I. Any indemnification of or advance of expenses
to a present or former director of the Corporation
in accordance with this Article shall be reported in
writing to the shareholders of the Corporation with or
before the notice or waiver of notice of the next
shareholders' meeting or with or before the next
submission to shareholders of a consent to action
without a meeting and, in any case, within the
twelve-month period immediately following the date
of the indemnification or advance.
J. The indemnification provided by this Article
shall be subject to all valid and applicable laws,
including, without limitation, Article 2.02-1 of
the Texas Business Corporation Act, and, in the
event this Article or any of the provisions hereof
or the indemnification contemplated hereby are found
to be inconsistent with or contrary to any such
valid laws, the latter shall be deemed to control
and this Article shall be regarded as modified
accordingly, and, as so modified, to continue in
full force and effect.
K. The provisions of this Article (i) are for
the benefit of, and may be enforced by, each director
and officer of the Corporation, the same as if set
forth in their entirety in a written instrument duly
executed and delivered by the Corporation and such
director or officer and (ii) constitute a continuing
offer to all present and future directors and officers
of the Corporation. The Corporation, by its
amendment to these Articles, (i) acknowledges and
agrees that each present and future director and
officer of the Corporation has relied upon and will
continue to rely upon the provisions of this Article
in accepting and serving in any of the capacities
referred to in Section A.1. of this Article,
(ii) waives reliance upon, and all notices of
acceptance of, such provisions by such directors
and officers and (iii) acknowledges and agrees that
no present or future director or officer of the
Corporation shall be prejudiced in his right to
enforce the provisions of this Article in accordance
with their terms by any act or failure to act on the
part of the Corporation.
L. No amendment, modification or repeal of this
Article or any provision thereof shall in any manner
terminate, reduce or impair the right of any past,
present or future director or officer of the Corporation
to be indemnified by the Corporation, nor the obligation
of the Corporation to indemnify any such director or
officer, under and in accordance with the provisions
of the Article as in effect immediately prior to
such amendment, modification or repeal with respect
to claims arising from or relating to matters
occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
M. If this Article or any portion hereof
shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation
shall nevertheless indemnify each Indemnitee
of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including
an action by or in the right of the Corporation,
to the fullest extent permitted by any applicable
portion of this Article held, by a court of
competent jurisdiction, to be invalid, the provision
shall be limited only to the extent necessary to
make such provision enforceable, it being the intent
of this Article to indemnify each individual who serves
or who has served as a director, officer, employee or
agent of the Corporation to the maximum extent
permitted by law."
Article 1302-7.06 of the Texas Miscellaneous Corporation Laws
Act, enacted in 1987, permits a corporation to limit the personal
liability of its directors. Article TWELFTH of the Company's
Articles of Incorporation, as adopted on August 22, 1994, provides
that a director shall not be liable to the Company or its
shareholders for monetary damages for any act or omission in the
director's capacity as a director, other than: (1) a breach of the
director's duty of loyalty to the Company or its shareholders, (2)
an act or omission not in good faith that constitutes a breach of
duty of the director to the Company or an act or omission that
involves intentional misconduct or a knowing violation of the law,
(3) a transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action taken
within the scope of the director's office, or (4) an act or
omission for which the liability of a director is expressly
provided by an applicable statute. This limitation of liability
applies only to acts or omissions occurring after August 31, 1987,
the effective date of Article 1302-7.06 of the Texas Miscellaneous
Corporation Laws Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Regulation Reference to Prior
SB Exhibit Filing or Exhibit Number
Number Document Attached Hereto
4 Horizon Bancorp, Inc. 1997 Attached as Exhibit 4
Stock Option and Incentive
Plan
5 Opinion of Selman & Munson, Attached as Exhibit 5
P.C.
24.1 Consent of Selman & Munson, Attached as Exhibit 24.1
P.C.
24.2 Consent of BDO Seidman, Attached as Exhibit 24.2
Certified Public Accountants
25 Power of Attorney Contained on Signature Page
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 to include any additional or changed
material information on the plan of distribution.
(2) That, for determining liability under the Securities
Act of 1933, each such post-effective amendment shall be
treated as a new registration statement of the securities
offered therein, and the offering of such securities at that
time shall be treated as the initial bona fide offering
thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
(b) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant 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
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.
(c) The undersigned Registration hereby undertakes that:
(1) For purposes of determining any liability under the
Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Act shall be treated as a part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Act, each post-effective amendment that contains a form
of prospectus shall be treated as a new Registration
Statement for the securities offered therein, and the
offering of such securities at that time shall be treated as
the initial bona fide offering thereof.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all the requirements
for filing on Form S-8 and the Registrant has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Austin, State
of Texas, on October 14, 1996.
HORIZON BANCORP, INC.
By: /s/
Douglas B. Kadison, President
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Douglas B. Kadison
and Charles S. Nichols, Jr., or either of them, 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 all other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all said attorneys-in-fat and agents or their
substitutes or substitute may lawfully do or cause to be done by
virtue hereof.
<PAGE>
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 October 14, 1996.
/s/ /s/
Douglas B. Kadison, Robert J. Ellis, Director
President and Director
(Principal Executive
and Operating Officer)
/s/ /s/
Charles S. Nichols, Jr., Michael Rotman, M.D., Director
Executive Vice President
and Director
/s/
Paul A. Antrim, Executive
Vice President, Treasurer,
Secretary and Director
(Principal Financial and
Accounting Officer)
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
HORIZON BANCORP,INC.
<PAGE>
EXHIBIT INDEX
Regulation Page Numbered in
SB Sequentially Numbered
Exhibit Registration
Number Statement
4 Horizon Bancorp, Inc. 1997 Stock
Option and Incentive Plan, form of
Incentive Stock Option Agreement,
form of Non-Qualified Stock Option
Agreement and form of Restricted
Stock Agreement
5 Opinion of Selman & Munson, P.C.
24.1 Consent of Selman & Munson, P.C.
24.2 Consent of BDO Seidman, Certified
Public Accountant
25 Power of Attorney Contained on
signature page
<PAGE>
EXHIBIT 4
Horizon Bancorp, Inc. 1997 Stock Option and
Incentive Plan
<PAGE>
EXHIBIT A
HORIZON BANCORP, INC.
1997 Stock Option and Incentive Plan
1. Plan Purpose. The purpose of the Plan is to promote the
long-term interests of the Corporation and its shareholders by
providing a means for attracting and retaining directors, advisory
directors, officers and employees of the Corporation and its
Affiliates. It is intended that designated Options granted
pursuant to the provisions of this Plan to persons employed by the
Corporation or its Affiliates will quality as Incentive Stock
Options. Options granted to persons who are not employees will be
Non-Qualified Stock Options.
2. Definitions. The following definitions are applicable to
the Plan:
"Affiliate" - means any "parent corporation" or "subsidiary
corporation" of the Corporation, as such terms are defined in
Section 424(e) and (f), respectively, of the Code.
"Award" - means the grant of an Incentive Stock Option,
a Non-Qualified Stock Option, a Stock Appreciation Right, a Limited
Stock Appreciation Right, or of Restricted Stock, or any
combination thereof, as provided in the Plan.
"Bank" - means Horizon Bank & Trust, SSB and any successor
entity.
"Code" - means the Internal Revenue Code of 1986, as
amended.
"Committee" - means the Committee referred to in Section
3 hereof.
"Continuous Service" - means the absence of any interruption
or termination of service as a director, advisory director, officer
or employee of the Corporation or an Affiliate, except that when
used with respect to persons granted an Incentive Option means the
absence of any interruption or termination of service as an
employee of the Corporation or an Affiliate. Service shall not be
considered interrupted in the case of sick leave, military leave or
any other leave of absence approved by the Corporation or in the
case of transfers between payroll locations of the Corporation or
between the Corporation, its parent, its subsidiaries or its
successor. With respect to any advisory director, continuous
service shall mean availability to perform such functions as may be
required of the Bank's advisory directors.
"Corporation" - means Horizon Bancorp, Inc., a Texas
corporation.
"Disinterested Person" - means any member of the Board of
Directors of the Corporation who (A) is an outside director as
defined under Section 162(m) of the Code and the regulations
thereunder and (B) a person who within the prior year has not been,
and is not being, granted any awards related to the Shares under
this Plan or any other plan of the Corporation or any of its
Affiliates except for awards which (i) are calculated in accordance
with a formula as contemplated in paragraph (c)(ii) of Rule 16b-3
("Rule 16b-3") under the Securities Exchange Act of 1934; (ii)
result from participation in an ongoing securities acquisition plan
meeting the conditions of paragraph (d)(2) of Rule 16b-3; or, (iii)
arise from an election by a director to receive all or part of his
board fees in securities. No recipient of a stock award granted
pursuant to Section 21 hereof shall be deemed not to be a
Disinterested Person solely by reason of such grant.
"Employee" - means any person, including an officer or
director, who is employed by the Corporation or any Affiliate.
"ERISA" - means the Employee Retirement Income Security
Act of 1974, as amended.
"Exercise Price" - means (i) in the case of an Option,
the price per Share at which the Shares subject to such Option may
be purchased upon exercise of such Option and (ii) in the case of
a Right, the price per Share (other than the Market Value per Share
on the date of exercise and the Offer Price per Share as defined in
Section 10 hereof) which, upon grant, the Committee determines
shall be utilized in calculating the aggregate value which a
Participant shall be entitled to receive pursuant to Sections 9, 10
or 13 hereof upon exercise of such Right.
"Incentive Stock Option" - means an option to purchase
Shares granted by the Committee pursuant to Section 6 hereof which
is subject to the limitations and restrictions of Section 8 hereof
and is intended to qualify under Section 422(b) of the Code.
"Limited Stock Appreciation Right" - means a stock
appreciation right with respect to Shares granted by the Committee
pursuant to Sections 6 and 10 hereof.
"Market Value" - means the average of the high and low
quoted sales price on the date in question (or, if there is no
reported sale on such date, on the last preceding date on which any
reported sale occurred) of a Share on the Composite Tape for the
New York Stock Exchange-Listed Stocks, or, if on such date the
Shares are not quoted on the Composite Tape, on the New York Stock
Exchange, or, if the Shares are not listed or admitted to trading
on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which the Shares are listed or admitted to trading, or, if the
Shares are not listed or admitted to trading on any such exchange,
the mean between the closing high bid and low asked quotations with
respect to a Share on such date on the National Association of
Securities Dealers, Inc., Automated Quotations System, or any
similar system then in use, or, if no such quotations are
available, the fair market value on such date of a Share as the
Committee shall determine.
"Non-Qualified Stock Option" - means an option to
purchase Shares granted by the Committee pursuant to Section 6
hereof, which option is not intended to qualify under Section
422(b) of the Code.
"Option" - means an Incentive Stock Option or a
Non-Qualified Stock Option.
"Participant" - means any officer, director, advisory
director or employee of the Corporation or any Affiliate who is
selected by the Committee to receive an Award.
"Plan" - means the 1997 Stock Option and Incentive Plan
of the Corporation.
"Related" - means (i) in the case of a Right, a Right
which is granted in connection with, and to the extent exercisable,
in whole or in part, in lieu of, an Option or another Right and(ii)
in the case of an Option, an Option with respect to which and to
the extent a Right is exercisable, in whole or in part, in lieu
thereof has been granted.
"Restricted Period" - means the period of time selected
by the Committee for the purpose of determining when restrictions
are in effect under Section 11 hereof with respect to Restricted
Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been
contingently awarded to a Participant by the Committee subject to
the restrictions referred to in Section 11 hereof, so long as such
restrictions are in effect.
"Right" - means a Limited Stock Appreciation Right or a
Stock Appreciation Right.
"Shares" - means the shares of common stock of the
Corporation.
"Senior Officer" - means the Corporation's president,
principal financial officer, or principal accounting officer, any
vice president of the Corporation in charge of a principal business
unit, division or function (such as lending, administration or
finance), any other officer who performs a policy-making function,
or any other person who performs similar policy-making functions
for the Corporation. Officers of the Corporation's Affiliates
shall be deemed Senior Officers of the Corporation if they perform
such policy-making functions for the Corporation.
"Stock Appreciation Right" - means a stock appreciation
right with respect to Shares granted by the Committee pursuant to
Sections 6 and 9 hereof.
"Ten Percent Beneficial Owner" - means the beneficial
owner of more than ten percent of any class of the Corporation's
equity securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
3. Administration. The Plan shall be administered by a
Committee consisting of two or more members, each of whom shall be
a Disinterested Person. The members of the Committee shall be
appointed by the Board of Directors of the Corporation. Except as
limited by the express provisions of the Plan, the Committee shall
have sole and complete authority and discretion to (i)select
Participants and grant Awards; (ii) determine the number of Shares
to be subject to types of Awards generally, as well as to
individual Awards granted under the Plan; (iii) determine the terms
and conditions upon which Awards shall be granted under the Plan;
(iv) prescribe the form and terms of instruments evidencing such
grants and (v) establish from time to time regulations for the
administration of the Plan, interpret the Plan, and make all
determinations deemed necessary or advisable for the administration
of the Plan. The Committee may maintain, and update from time to
time as appropriate, a list designating selected directors as
Disinterested Persons. The purpose of such list shall be to
evidence the status of such individuals as Disinterested Persons,
and the Board of Directors may appoint to the Committee any
individual actually qualifying as a Disinterested Person,
regardless of whether identified as such on said list.
A majority of the Committee shall constitute a quorum, and the
acts of a majority of the members present at any meeting at which
a quorum is present, or acts approved in writing by a majority of
the Committee without a meeting, shall be acts of the Committee.
4. Participation in Committee Awards. The Committee may
select from time to time Participants in the Plan from those
directors, advisory directors, officers and employees (other than
Disinterested Persons), of the Corporation or its Affiliates who,
in the opinion of the Committee, have the capacity for contributing
to the successful performance of the Corporation or its Affiliates.
5. Shares Subject to Plan. Subject to adjustment by the
operation of Section 12 hereof, the maximum number of Shares with
respect to which Awards may be made under the Plan is 65,000
shares. The Shares with respect to which Awards may be made under
the Plan may be either authorized and unissued shares or issued
shares heretofore or hereafter reacquired and held as treasury
shares. Shares which are subject to Related Rights and Related
Options shall be counted only once in determining whether the
maximum number of Shares with respect to which Awards may be
granted under the Plan has been exceeded. An Award shall not be
considered to have been made under the Plan with respect to any
Option or Right which terminates or with respect to Restricted
Stock which is forfeited, and new Awards may be granted under the
Plan with respect to the number of Shares as to which such
termination or forfeiture has occurred.
6. General Terms and Conditions of Options and Rights. The
Committee shall have full and complete authority and discretion,
except as expressly limited by the Plan, to grant Options and/or
Rights and to provide the terms and conditions (which need not be
identical among Participants) thereof. In particular, the
Committee shall prescribe the following terms and conditions: (i)
the Exercise Price of any Option or Right, which shall not be less
than the Market Value per Share at the date of grant of such Option
or Right, (ii) the number of Shares subject to, and the expiration
date of, any Option or Right, which expiration date shall not
exceed ten years from the date of grant, (iii) the manner, time and
rate (cumulative or otherwise) of exercise of such Option or Right,
and (iv) the restrictions, if any, to be placed upon such Option or
Right or upon Shares which may be issued upon exercise of such
Option or Right. The Committee may, as a condition of granting any
Option or Right, require that a Participant agree not to thereafter
exercise one or more Options or Rights previously granted to such
Participant.
7. Exercise of Options or Rights.
(a) Except as provided herein, an Option or Right
granted under the Plan shall be exercisable during the lifetime of
the Participant to whom such Option or Right was granted only by
such Participant and, except as provided in paragraphs (c) and (d)
of this Section 7, no such Option or Right may be exercised unless
at the time such Participant exercises such Optionor Right, such
Participant has maintained Continuous Service since the date of
grant of such Option or Right. Cash settlements of Rights may be
made only in accordance with any applicable restrictions pursuant
to Rule 16b-3(e) under the Securities Exchange Act of 1934 or any
similar or successor provision.
(b) To exercise an Option or Right under the Plan, the
Participant to whom such Option or Right was granted shall give
written notice to the Corporation in form satisfactory to the
Committee (and, if partial exercises have been permitted by the
Committee, by specifying the number of Shares with respect to which
such Participant elects to exercise such Option or Right)together
with full payment of the Exercise Price, if any and to the extent
required. The date of exercise shall be the date on which such
notice is received by the Corporation. Payment, if any is
required, shall be made either (i) in cash (including check, bank
draft or money order) or (ii)if permitted by the Committee, by
delivering (A) Shares already owned by the Participant and having
a fair market value equal to the applicable exercise price, such
fair market value to be determined in such appropriate manner as
may be provided by the Committee or as may be required in order to
comply with or to conform to requirements of any applicable laws or
regulations, or (B) a combination of cash and such Shares.
(c) If a Participant to whom an Option or Right was
granted shall cease to maintain Continuous Service 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), such Participant may,
but only within the period of three months immediately succeeding
such cessation of Continuous Service (or one year in the case of a
disability as defined in Section 22(e)(3) of the Code) and in no
event after the expiration date of such Option or Right, exercise
such Option or Right to the extent that such Participant was
entitled to exercise such Option or Right at the date of such
cessation, provided, however, that such right of exercise after
cessation of Continuous Service shall not be available to a
Participant if the Committee otherwise determines and so provides
in the applicable instrument or instruments evidencing the grant of
such Option or Right. Notwithstanding the foregoing, if a
Participant to whom an Option or Right was granted shall cease to
maintain Continuous Service due to normal retirement, and such
Participant has served the Corporation or the Bank for at least ten
years, the Option or Right granted to such Participant shall become
immediately exercisable, and the Participant may exercise such
Option or Right only during the shortest of the following periods
(i) the five year period immediately succeeding such cessation of
Continuous Service, or (ii) the period remaining until the
expiration of such Option or Right. If the Continuous Service of
a Participant to whom an Option or Right was granted by the
Corporation is terminated for cause, all rights under any option or
Right of such Participant shall expire immediately upon the giving
to the Participant of notice of such termination.
(d) In the event of the death of a Participant while in
the Continuous Service of the Corporation or an Affiliate or within
the three month or five year periods referred to in paragraph (c)
of this Section 7, the person to whom any Option or Right held by
the Participant at the time of his death is transferred by will or
the laws of descent and distribution, or in the case of an Award
other than an Incentive Stock Option, pursuant to a qualified
domestic relations order, as defined in the Code or Title I of
ERISA or the rules thereunder may, but only to the extent such
Participant was entitled to exercise such Option or Right
immediately prior to his death, exercise such Option or Right at
any time within a period of one year succeeding the date of death
of such Participant, but in no event later than ten years from the
date of grant of such Option or Right. Following the death of any
Participant to whom an Option was granted under the Plan,
irrespective of whether any Related Right shall have theretofore
been granted to the Participant or whether the person entitled to
exercise such Related Right desires to do so, the Committee may, as
an alternative means of settlement of such Option, elect to pay to
the person to whom such Option is transferred by will or by the
laws of descent and distribution, or in the case of an Option other
than an Incentive Stock Option, pursuant to a qualified domestic
relations order, as defined in the Code or Title I of ERISA or the
rules thereunder, the amount by which the Market Value per Share on
the date of exercise of such Option shall exceed the Exercise Price
of such Option, multiplied by the number of Shares with respect to
which such Option is properly exercised. Any such settlement of an
Option shall be considered an exercise of such Option for all
purposes of the Plan.
(e) Notwithstanding the provisions of subparagraphs (c)
and (d) above, the Committee may, in its sole discretion, establish
different terms and conditions pertaining to the effect of
termination to the extent permitted by applicable federal and state
law.
8. Incentive Stock Options. Incentive Stock Options may be
granted only to Participants who are Employees. Any provision of
the Plan to the contrary notwithstanding, (i) no Incentive Stock
Option shall be granted more than ten years from the earlier of the
date the Plan is adopted by the Board of Directors of the
Corporation and the date the Plan is approved by the shareholders
and no Incentive Stock Option shall be exercisable more than ten
years from the date such Incentive Stock Option is granted, (ii)
the Exercise Price of any Incentive Stock Option shall not be less
than the Market Value per Share on the date such Incentive Stock
Option is granted, (iii) any Incentive Stock Option shall not be
transferable by the Participant to whom such Incentive Stock Option
is granted other than by will or the laws of descent and
distribution, and shall be exercisable during such Participant's
lifetime only by such Participant, (iv) no Incentive Stock Option
shall be granted to any individual who, at the time such Incentive
Stock Option is granted, owns stock possessing more than ten
percent of the total combined voting power of all classes of stock
of the Corporation or any Affiliate unless the Exercise Price of
such Incentive Stock Option is at least 110 percent of the Market
Value per Share at the date of grant and such Incentive Stock
Option is not exercisable after the expiration of five years from
the date such Incentive Stock Option is granted, and (v) the
aggregate Market Value (determined as of the time any Incentive
Stock Option is granted) of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by a
Participant in any calendar year shall not exceed $100,000.
9. Stock Appreciation Rights. A Stock Appreciation Right
shall, upon its exercise, entitle the Participant to whom such
Stock Appreciation Right was granted to receive a number of Shares
or cash or combination thereof, as the Committee in its discretion
shall determine, the aggregate value of which (i.e., the sum of the
amount of cash and/or Market Value of such Shares on date of
exercise) shall equal (as nearly as possible, it being understood
that the Corporation shall not issue any fractional shares) the
amount by which the Market Value per Share on the date of such
exercise shall exceed the Exercise Price of such Stock Appreciation
Right, multiplied by the number of Shares with respect of which
such Stock Appreciation Right shall have been exercised. A Stock
Appreciation Right may be Related to an Option or may be granted
independently of any Option as the Committee shall from time to
time in each case determine. At the time of grant of an Option the
Committee shall determine whether and to what extent a Related
Stock Appreciation Right shall be granted with respect thereto;
provided, however, and notwithstanding any other provision of the
Plan, that if the Related Option is an Incentive Stock Option, the
Related Stock Appreciation Right shall satisfy all the restrictions
and limitations of Section 8 hereof as if such Related Stock
Appreciation Right were an Incentive Stock Option and as if other
rights which are Related to Incentive Stock Options were Incentive
Stock Options. In the case of a Related Option, such Related
Option shall cease to be exercisable to the extent of the Shares
with respect to which the Related Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related Option,
any Related Stock Appreciation Right shall terminate to the extent
of the Shares with respect to which the Related Option was
exercised or terminated. Notwithstanding the foregoing, no Stock
Appreciation Right shall be exercisable by a director, Senior
Officer or Ten Percent Beneficial Owner of the Corporation within
six months of the date of its grant.
10. Limited Stock Appreciation Rights. At the time of grant
of an Option or Stock Appreciation Right to any Participant, the
Committee shall have full and complete authority and discretion to
also grant to such Participant a Limited Stock Appreciation Right
which is Related to such Option or Stock Appreciation Right;
provided, however and notwithstanding any other provision of the
Plan, that if the Related Option is an Incentive Stock Option, the
Related Limited Stock Appreciation Right shall satisfy all the
restrictions and limitations of Section 8 hereof as if such Related
Limited Stock Appreciation Right were an Incentive Stock Option and
as if all other Rights which are Related to Incentive Stock Options
were Incentive Stock Options. Notwithstanding any other provision
of the Plan, a Limited Stock Appreciation Right shall be
exercisable only during the period beginning on the first day
following the date of expiration of any "offer" (as such term is
hereinafter defined) and ending on the forty-fifth day following
such date, provided, however, that no Limited Stock Appreciation
Right shall be exercisable by a director, Senior Officer or Ten
Percent Beneficial Owner within six months of the date of its
grant.
A Limited Stock Appreciation Right shall, upon its exercise,
entitle the Participant to whom such Limited Stock Appreciation
Right was granted to receive an amount of cash equal to the amount
by which the "Offer Price per Share" (as such term is hereinafter
defined) or the Market Value on the date of such exercise, as shall
have been provided by the Committee in its discretion at the time
of grant, shall exceed the Exercise Price of such Limited Stock
Appreciation Right, multiplied by the number of Shares with respect
to which such Limited Stock Appreciation Right shall have been
exercised. Upon the exercise of a Limited Stock Appreciation
Right, any Related Option and/or Related Stock Appreciation Right
shall cease to be exercisable to the extent of the Shares with
respect to which such Limited Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related Option or
Related Stock Appreciation Right, any Related Limited Stock
Appreciation Right shall terminate to the extent of the Shares with
respect to which such Related Option or Related Stock Appreciation
Right was exercised or terminated.
For the purposes of this Section 10, the term "Offer" shall
mean any tender offer or exchange offer for Shares other than one
made by the Corporation, provided that the corporation, person or
other entity making the offer acquires pursuant to such offer
either (i) 25% of the Shares outstanding immediately prior to the
commencement of such offer or (ii) a number of Shares which,
together with all other Shares acquired in any tender offer or
exchange offer (other than one made by the Corporation) which
expired within sixty days of the expiration date of the offer in
question, equals 25% of the Shares outstanding immediately prior to
the commencement of the offer in question. The term "Offer Price
per Share" as used in this Section 10 shall mean the highest price
per Share paid in any Offer which Offer is in effect any time
during the period beginning on the sixtieth day prior to the date
on which a Limited Stock Appreciation Right is exercised and ending
on the date on which such Limited Stock Appreciation Right is
exercised. Any securities or property which are part or all of the
consideration paid for Shares in the Offer shall be valued in
determining the Offer Price per Share at the higher of (A) the
valuation placed on such securities or property by the corporation,
person or other entity making such Offer or (B) the valuation
placed on such securities or property by the Committee.
11. Terms and Conditions of Restricted Stock. The Committee
shall have full and complete authority, subject to the limitations
of the Plan, to grant awards of Restricted Stock and, in addition
to the terms and conditions contained in paragraphs (a) through (f)
of this Section 11, to provide such other terms and conditions
(which need not be identical among Participants) in respect of such
Awards, and the vesting thereof, as the Committee shall determine
and provide in the agreement referred to in paragraph (d) of this
Section 11.
(a) At the time of an award of Restricted Stock, the
Committee shall establish for each Participant a Restricted Period
of not less than six months during which or at the expiration of
which, as the Committee shall determine and provide in the
agreement referred to in paragraph (d) of this Section 11, the
Shares awarded as Restricted Stock shall vest. Subject to any such
other terms and conditions as the Committee shall provide, shares
of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered by the Participant, except as hereinafter
provided, during the Restricted Period. Except for such
restrictions, and subject to paragraphs (c), (d) and (e) of this
Section 11 and Section 12 hereof, the Participant as owner of such
shares shall have all the rights of a stockholder, including but
not limited to the right to receive all dividends paid on such
shares and the right to vote such shares. The Committee shall have
the authority, in its discretion, to accelerate the time at which
any or all of the restrictions shall lapse with respect to any
shares of Restricted Stock prior to the expiration of the
Restricted Period with respect thereto, or to remove any or all of
such restrictions, whenever it may determine that such action is
appropriate by reason of changes in applicable tax or other laws or
other changes in circumstances occurring after the commencement of
such Restricted Period.
(b) Except as provided in Section 14 hereof, if a
Participant ceases to maintain Continuous Service for any reason
(other than death, total or partial disability or normal or early
retirement) unless the Committee shall otherwise determine, all
shares of Restricted Stock theretofore awarded to such Participant
and which at the time of such termination of Continuous Service are
subject to the restrictions imposed by paragraph (a) of this
Section 11 shall upon such termination of Continuous Service be
forfeited and returned to the Corporation. Unless the Committee
shall have provided in the agreement referred to in paragraph (d)
of this Section 11 for a ratable lapse of restrictions with respect
to an award of shares of Restricted Stock during the Restricted
Period, if a Participant ceases to maintain Continuous Service by
reason of death, total or partial disability or normal or early
retirement, such portion of such shares of Restricted Stock awarded
to such Participant which at the time of such termination of
Continuous Service are subject to the restrictions imposed by
paragraph (a) of this Section 11 as shall be equal to the portion
of the Restricted Period with respect to such shares which shall
have elapsed at the time of such termination of Continuous Service
shall be free of restrictions and shall not be forfeited.
(c) Each certificate in respect of shares of Restricted
Stock awarded under the Plan shall be registered in the name of the
Participant and deposited by the Participant, together with a stock
power endorsed in blank, with the Corporation and shall bear the
following (or a similar) legend:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) contained
in the 1997 Stock Option and Incentive Plan of
Horizon Bancorp, Inc. and an Agreement entered into
between the registered owner and Horizon Bancorp, Inc.
Copies of such Plan and Agreement are on file in the
offices of the Secretary of Horizon Bancorp, Inc.,
5800 North MoPac Expressway, Austin, Texas 78731."
(d) At the time of an award of shares of Restricted
Stock, the Participant shall enter into an Agreement with the
Corporation in a form specified by the Committee, agreeing to the
terms and conditions of the award and such other matters as the
Committee shall in its sole discretion determine.
(e) At the time of an award of shares of Restricted
Stock, the Committee may, in its discretion, determine that the
payment to the Participant of dividends declared or paid on such
shares, or specified portion thereof, by the Corporation shall be
deferred until the earlier to occur of (i) the lapsing of the
restrictions imposed under paragraph (a) of this Section 11 or (ii)
the forfeiture of such shares under paragraph (b) of this Section
11, and shall be held by the Corporation for the account of the
Participant until such time. In the event of such deferral, there
shall be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year
at a rate per annum as the Committee, in its discretion, may
determine. Payment of deferred dividends, together with interest
accrued thereon as aforesaid, shall be made upon the earlier to
occur of the events specified in (i) and (ii) of the immediately
preceding sentence.
(f) At the expiration or lapse of the restrictions
imposed by paragraph (a) of this Section 11, the Corporation shall
redeliver to the Participant (or where the relevant provision of
paragraph (b) of this Section 11 applies in the case of a deceased
Participant, to his legal representative, beneficiary or heir) the
certificate(s) and stock power deposited with it pursuant to
paragraph (c) of this Section 11 and the Shares represented by such
certificate(s) shall be free of the restrictions referred to in
paragraph (a) of this Section 11.
12. Adjustments Upon Changes in Capitalization. In the event
of any change in the outstanding Shares subsequent to the effective
date of the Plan by reason of any reorganization, recapitalization,
stock split, stock dividend, combination or exchange of shares,
merger, consolidation or any change in the corporate structure or
Shares of the Corporation, the maximum aggregate number and class
of shares as to which Awards may be granted under the Plan and the
number and class of shares with respect to which Awards theretofore
have been granted under the Plan shall be appropriately adjusted by
the Committee, whose determination shall be conclusive. Any shares
of stock or other securities received, as a result of any of the
foregoing, by a Participant with respect to Restricted Stock shall
be subject to the same restrictions and the certificate(s) or other
instruments representing or evidencing such shares or securities
shall be legended and deposited with the Corporation in the manner
provided in Section 11 hereof.
13. Effect of Merger. In the event of any merger,
consolidation or combination of the Corporation (other than a
merger, consolidation or combination in which the Corporation is
the continuing entity and which does not result in the outstanding
Shares being converted into or exchanged for different securities,
cash or other property, or any combination thereof) pursuant to a
plan or agreement the terms of which are binding upon all
shareholders of the Corporation (except to the extent that
dissenting shareholders may be entitled, under statutory provisions
or provisions contained in the certificate of incorporation, to
receive the appraised or fair value of their holdings), any
Participant to whom an Option or Right has been granted at least
six months prior to such event shall have the right (subject to the
provisions of the Plan and any limitation applicable to such Option
or Right), thereafter and during the term of each such Option or
Right, to receive upon exercise of any such Option or Right an
amount equal to the excess of the fair market value on the date of
such exercise of the securities, cash or other property, or
combination thereof, receivable upon such merger, consolidation or
combination in respect of a Share over the Exercise Price of such
Right or Option, multiplied by the number of Shares with respect to
which such Option or Right shall have been exercised. Such amount
may be payable fully in cash, fully in one or more of the kind or
kinds of property payable in such merger, consolidation or
combination, or partly in cash and partly in one or more of such
kind or kinds of property, all in the discretion of the Committee.
Unless the Committee shall have provided otherwise in the agreement
referred to in paragraph (d) of Section 11 hereof, in the event of
any such merger, consolidation or combination any Restricted Period
shall lapse with respect to Shares of Restricted Stock awarded at
least six months prior to such event, all such Shares shall be
fully vested in the Participants to whom such Shares were awarded,
and the holders of such Shares shall be eligible to receive in
respect thereof the full amount receivable per Share in such
merger, consolidation or combination.
14. Effect of Change in Control. Each of the events
specified in the following clauses (i) through (iii) of this
Section 14 shall be deemed a "change of control": (i) any third
person, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, shall become the beneficial owner
of shares of the Corporation with respect to which 25% or more of
the total number of votes for the election of the Board of
Directors of the Corporation may be cast, (ii) as a result of, or
in connection with, any cash tender offer, exchange offer, merger
or other business combination, sale of assets or contested
election, or combination of the foregoing, the persons who were
directors of the Corporation shall cease to constitute a majority
of the Board of Directors of the Corporation or (iii) the
shareholders of the Corporation shall approve an agreement
providing either for a transaction in which the Corporation will
cease to be an independent publicly owned entity or for a sale or
other disposition of all or substantially all the assets of the
Corporation provided, however, that the occurrence of any such
events shall not be deemed a "change in control" if, prior to such
occurrence, a resolution specifically approving such occurrence
shall have been adopted by at least a majority of the Board of
Directors of the Corporation. If the Continuous Service of any
Participant of the Corporation or any Affiliate is involuntarily
terminated for whatever reason, at any time within eighteen months
after a change in control, unless the Committee shall have
otherwise provided in the agreement referred to in paragraph (d) of
Section 11 hereof, any Restricted Period with respect to Restricted
Stock theretofore awarded to such Participant shall lapse upon such
termination and all Shares awarded as Restricted Stock shall become
fully vested in the Participant to whom such Shares were awarded.
If a tender offer or exchange offer for Shares (other than such an
offer by the Corporation) is commenced, or if the event specified
in clause (iii) above shall occur, unless the Committee shall have
otherwise provided in the instrument evidencing the grant of an
Option or Stock Appreciation Right, all Options and Stock
Appreciation Rights theretofore granted and not fully exercisable
shall become exercisable in full upon the happening of such event
and shall remain so exercisable for a period of sixty days
following such date, after which they shall revert to being
exercisable in accordance with their terms; provided, however, that
no Option or Stock Appreciation Right shall be exercisable by a
director, Senior Officer or Ten Percent Beneficial Owner of the
Corporation within six months of the date of grant of such Option
or Stock Appreciation Right and no Option or Stock Appreciation
Right which has previously been exercised or otherwise terminated
shall become exercisable.
15. Assignments and Transfers. No Award nor any right or
interest of a Participant under the Plan in any instrument
evidencing any Award under the Plan may be assigned, encumbered or
transferred except, in the event of the death of a Participant, by
will or the laws of descent and distribution or, in the case of
Awards other than Incentive Stock Options, pursuant to a qualified
domestic relations order, as defined in the Code or Title I of
ERISA or the rules thereunder.
16. Employee Rights Under the Plan. No director, officer or
employee shall have a right to be selected as a Participant nor,
having been so selected, to be selected again as a Participant and
no director, officer, employee or other person shall have any claim
or right to he granted an Award under the Plan or under any other
incentive or similar plan of the Corporation or any Affiliate.
Neither the Plan nor any action taken thereunder shall be construed
as giving any employee any right to be retained in the employ of
the Corporation or any Affiliate.
17. Delivery and Registration of Stock. The Corporation's
obligation to deliver Shares with respect to an Award shall, if the
Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Participant 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, as amended, 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 such
securities act or other securities legislation. The Corporation
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.
This Plan is intended to comply with Rule 16b-3 under the
Securities Exchange Act of 1934. 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.
18. Withholding Tax. Upon the termination of the Restricted
Period with respect to any shares of Restricted Stock (or at any
such earlier time, if any, that an election is made by the
Participant under Section 83(b) of the Code, or any successor
provision thereto, to include the value of such shares in taxable
income), the Corporation shall retain a sufficient number of shares
held by it to cover the amount required to be withheld. The
Corporation shall have the right to deduct from all dividends paid
with respect to shares of Restricted Stock the amount of any taxes
which the Corporation is required to withhold with respect to such
dividend payments.
The Corporation shall have the right to deduct from all
amounts paid in cash with respect to the exercise of a Right under
the Plan any taxes required by law to be withheld with respect to
such cash payments. Where a Participant or other person is
entitled to receive Shares pursuant to the exercise of an Option or
Right pursuant to the Plan, the Corporation shall have the right to
require the Participant or such other person to pay the Corporation
the amount of any taxes which the Corporation is required to
withhold with respect to such Shares.
No discretion or choice shall be conferred upon any
Participant, or other Person entitled to receive Shares, with
respect to the form, timing or method of any such tax withholding.
19. Amendment or Termination. The Board of Directors of the
Corporation may amend, suspend or terminate the Plan or any portion
thereof at any time, but (except as provided in Section 12 hereof)
no amendment shall be made without approval of the shareholders of
the Corporation which shall (i) materially increase the aggregate
number of Shares with respect to which Awards may be made under the
Plan, (ii) materially increase the aggregate number of Shares which
may be subject to Awards to Participants who are not Employees or
(iii) change the class of persons eligible to participate in the
Plan; provided, however, that no such amendment, suspension or
termination shall impair the rights of any Participant, without his
consent, in any Award theretofore made pursuant to the Plan.
20. Effective Date and Term of Plan. The Plan shall become
effective upon its adoption by the Board of Directors of the
Corporation, subject to the approval of the Plan by stockholders of
the Corporation. It shall continue in effect for a term of ten
years from the earlier of the date of adoption of the Plan by the
Board of Directors or its approval by the shareholders, unless
sooner terminated under Section 19 hereof.
21. Formula Grant. If any options are granted under the
Plan, the following non-employee members of the Board of Directors
of the Corporation at the time of stockholder ratification of this
Plan are hereby granted ten-year, Non-Qualified Stock Option to the
following shares: Robert Ellis 7,309 shares and Michael Rotman
3,655 shares. The Exercise Price per share on such options shall
equal the Market Value per share of the Shares on the date of
grant. Each such Option shall be evidenced by a Non-Qualified
Stock Option Agreement in a form approved by the Board of Directors
and shall be subject in all respects to the terms and conditions of
this Plan, which are controlling.
22. Notwithstanding anything else in this Plan to the
contrary, to the extent that the Plan provides for formula awards,
as defined in Rule 16b-3(c)(2)(ii) under the Securities Exchange
Act of 1934, such provisions may not be amended more than once
every six months, other than to comport with changes in the Code,
ERISA or the rules thereunder.
<PAGE>
EXHIBIT 5
Opinion of Selman & Munson, P.C.
<PAGE>
SELMAN & MUNSON Tenth Floor
1000 Franklin Plaza
111 Congress Avenue
Austin, Texas 78701
Phone (512)505-5955
FAX: (512)505-5956
October 11, 1996
Board of Directors
Horizon Bancorp, Inc.
5800 North MoPac Expressway
Austin, Texas 78731
Gentlemen:
We have acted as counsel to Horizon Bancorp, Inc. (the
"Corporation") in connection with the preparation and filing with
the Securities and Exchange Commission of a registration statement
on Form S-8 under the Securities Act of 1933 (the "Registration
Statement") relating to 65,000 shares of the Corporation's Common
Stock, par value $.01 per Share (the "Common Stock"), to be offered
pursuant to the 1997 Stock Option and Incentive Plan of the
Corporation (the "Plan").
In this connection, we have reviewed originals or copies,
certified or otherwise identified to our satisfaction, of the
Corporation's Articles of Incorporation, Bylaws, resolutions of its
Board of Directors and such other documents and corporate records
as we deem appropriate for the purpose of giving this opinion.
Based upon the foregoing, it is our opinion that:
1. The shares of Common Stock being so registered have been duly
authorized under the Corporation's Articles of Incorporation.
2. The shares of Common Stock to be offered by the Corporation
will be, when and if issued, sold and paid for as contemplated
by the Plan, legally issued, fully paid and non-assessable
shares of Common Stock of the Corporation.
Very truly yours,
SELMAN & MUNSON, P.C.
By:/s/
Jack A. Selman, President
<PAGE>
EXHIBIT 24.1
Consent of Selman & Munson, P.C.
<PAGE>
SELMAN & MUNSON 1000 Franklin Plaza
111 Congress Avenue
Austin, Texas 78701
(512)505-5955
FAX: (512)505-5956
October 15, 1996
Board of Directors
Horizon Bancorp, Inc.
5800 North MoPac Expressway
Austin, Texas 78731
Gentlemen:
We hereby consent to the inclusion of our opinion as Exhibit
5 of this Registration Statement and the reference to our firm in
the Prospectus. In giving this consent, we do not admit that we
are within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
SELMAN & MUNSON, P.C.
By:/s/
Charles E. Munson
Vice President
<PAGE>
EXHIBIT 24.2
Consent of BDO Seidman, Certified Public Accountant
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Horizon Bancorp, Inc. (the
"Corporation") of our report dated July 12, 1995 on the
consolidated financial statements of Horizon Bancorp, Inc. as of
April 30,1994 and 1995 and for the three years ended April 30,
1995, included in the Company's Annual Report on Form 10-K, filed
pursuant to the Securities Exchange Act of 1934, as amended.
/s/
BDO Seidman
Austin, Texas
October 15, 1996
