As filed with the Securities and Exchange Commission
on November 15, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
AMTRUST CAPITAL CORP.
(Exact name of registrant as specified in its
charter)
Delaware 35-1940250
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
20 West Fifth Street, Peru, Indiana 46970
(Address of principal executive offices)(Zip Code)<PAGE>
<PAGE>
AMTRUST CAPITAL CORP.
RECOGNITION AND RETENTION PLAN
(Full title of the plan)
Gary A. Lax, P.C.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional
corporations)
Suite 700 East
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for
service)
CALCULATION OF REGISTRATION
Proposed Proposed Amount
Title of (1) maximum maximum of
securities Amount offering aggregate regist-
to be to be price offering ration
registered registered per share price Fee
Common
Stock, par
value $.01 23,202
per share shares $10.00(2) $23,020(2) $71,00(2)
(1)Pursuant to Rule 416 under the Securities Act of
1933, as amended, this Registration Statement
covers, in addition to the number of shares set
forth above, an indeterminate number of shares
which, by reason of certain events specified in the
Plan, may become subject to the Plan.
(2)Estimated in accordance with Rule 457(h), solely
for the purpose of calculating the registration fee.
The proposed maximum offering price per share
represents the average of the bid and ask prices of
$10.00 per share of that class on the Nasdaq Small-Cap
Market on November 11, 1996.
<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 AmTrust Capital Corp.
Recognition and Retention 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 NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by
Reference.
The following documents previously or
concurrently filed by AmTrust Capital Corp. (the
"Company") 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 June 30, 1996 (File
No. 0-25484) filed pursuant to Rule 13a-1 of
the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) 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 the Annual Report referred to
above;
(c) the Company's definitive Proxy Statement for
its Annual Meeting of Stockholders held on
October 21, 1996;
(d) the description of the common stock, par
value $.01 per share, of the Company
contained in the Company's Registration
Statement on Form 8-A (File No. 0-25484)
filed with the Commission on February 2, 1995
and all amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the
Company with the Commission pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act,
after the date hereof, and 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 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.
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 Jami
L. Cornish, Treasurer and Chief Financial Officer,
AmTrust Capital Corp., 20 West Fifth Street, Peru,
Indiana 46970, telephone number (317) 472-1991.
All information appearing in this
Registration Statement 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 ELEVENTH of the Company's Certificate
of Incorporation provides for indemnification of
directors and officers of the Registrant against any
and all liabilities, judgments, fines and reasonable
settlements, costs, expenses and attorneys' fees
incurred in any actual, threatened or potential
proceeding, except to the extent that such
indemnification is limited by Delaware law and such
law cannot be varied by contract or bylaw. Article
ELEVENTH also provides for the authority to purchase
insurance with respect thereto.
Section 145 of the General Corporation Law of
the State of Delaware authorizes a corporation's
board of directors to grant indemnity under certain
circumstances to directors and officers, when made,
or threatened to be made, parties to certain
proceedings by reason of such status with the
corporation, against judgments, fines, settlements
and expenses, including attorneys' fees. In
addition, under certain circumstances such persons
may be indemnified against expenses actually and
reasonably incurred in defense of a proceeding by or
on behalf of the corporation. Similarly, the
corporation, under certain circumstances, is
authorized to indemnify directors and officers of
other corporations or enterprises who are serving as
such at the request of the corporation, when such
persons are made, or threatened to be made, parties
to certain proceedings by reason of such status,
against judgments, fines, settlements and expenses,
including attorneys' fees; and under certain
circumstances, such persons may be indemnified
against expenses actually and reasonably incurred in
connection with the defense or settlement of a
proceeding by or in the right of such other
corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good
faith, (ii) was acting in a manner he reasonably
believed to be in or not opposed to the best
interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a
criminal proceeding, had no reasonable cause to
believe his conduct was unlawful, and (iv) was not
adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where
the proceeding was brought determines that such
person is fairly and reasonably entitled to
indemnity).
Unless ordered by a court, indemnification
may be made only following a determination that such
indemnification is permissible because the person
being indemnified has met the requisite standard of
conduct. Such determination may be made (i) by the
corporation's board of directors by a majority vote
of a quorum consisting of directors not at the time
parties to such proceeding; or (ii) if such a quorum
cannot be obtained or the quorum so directs, then by
independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 also permits expenses incurred by
directors and officers in defending a proceeding to
be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of
an undertaking by the director or officer to repay
such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation
against such expenses.
Under a directors' and officers' liability
insurance policy, directors and officers of the
Company are insured against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Page Number in
Sequentially
Regulation Numbered
S-B Exhibit Registration
Number Document Statement
4 Instruments Defining the Rights
of Security Holders, Including
Indentures:
Certificate of Incorporation of
AmTrust Capital Corp. *
Bylaws of AmTrust Capital Corp. *
Specimen form of common stock
certification of AmTrust Capital
Corp. *
AmTrust Capital Corp. Recognition
and Retention Plan and form of Attached as
Restricted Stock Agreement Exhibit 4
5 Opinion of Silver, Freedman & Attached as
Taff, L.L.P. Exhibit 5
23 Consent of Experts and Counsel:
Consent of Silver, Feedman & Attached as
Taff, L.L.P. Exhibit 23.1
Consent of Geo. S. Olive & Attached
Co.LLC Exhibit 23.2
24 Power of Attorney Contained on
Signature Page
*Filed as exhibits to the Registrant's Registration
Statement on Form S-1 (File No. 33-87580) filed with
the Commission on December 19, 1994 pursuant to
Section 5 of the Securities Act of 1933 and all
amendments thereto or reports filed for the purpose
of updating such description. All of such
previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of
Regulation S-B
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 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
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.
(c) 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
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Peru,
Indiana on November 15, 1996.
AMTRUST CAPITAL CORP.
By: /s/ Bruce M. Borst
Bruce M. Borst, President, Chief
Executive Officer and Director
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Bruce M. Borst his true and
lawful attorney-in-fact and agent, with full power of substitution and
re-substitution, 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 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, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming said
attorney-in-fact and agent 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 below by the following persons in
the capacities and on the dates indicated.
/s/ Kenneth L. Hasselkus /s/ Bruce M. Borst
Kenneth L. Hasselkus, Chairman Bruce M. Borst, President, Chief
of the Board Executive and Director (Principal
Executive and Operating Officer)
November 15, 1996 November 15, 1996
/s/ Dean H. Hartley /s/ Roderic E. Daniels
Dean H. Hartley, Director Roderic E. Daniels, Director
November 15, 1996 November 15, 1996
/s/ Thomas A. Kirk /s/ Jami L. Cornish
Thomas A. Kirk, Director Jami L. Cornish, Treasurer and
Chief Financial Officer (Principal
Financial and Accounting Officer)
November 15, 1996 November 15, 1996
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
AMTRUST CAPITAL CORP.
<PAGE>
EXHIBIT INDEX
Page Number in
Sequentially
Regulation Numbered
S-B Exhibit Registration
Number Document Statement
Certificate of Incorporation of
AmTrust Capital Corp. *
Bylaws of AmTrust Capital Corp. *
Specimen form of common stock
certification of AmTrust Capital
Corp. *
4 AmTrust Capital Corp. Recognition
and Retention Plan and form of
Restricted Stock Agreement Page ___
5 Opinion of Silver, Freedman &
Taff, L.L.P. Page ___
23.1 Consent of Silver, Feedman &
Taff, L.L.P. Page ___
23.2 Consent of Geo. S. Olive &
Co.LLC Page ___
24 Power of Attorney Contained on
Signature Page
*Filed as exhibits to the Registrant's Registration
Statement on Form S-1 (File No. 33-87580) filed with
the Commission on December 19, 1994 pursuant to
Section 5 of the Securities Act of 1933 and all
amendments thereto or reports filed for the purpose
of updating such description. All of such
previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of
Regulation S-B
<PAGE>
EXHIBIT 4
<PAGE>
AMTRUST CAPITAL CORP.
RECOGNITION AND RETENTION PLAN
1. Plan Purpose. The purpose of the Plan is to
promote the long-term interests of the Corporation
and its stockholders by providing a means for
attracting and retaining executive officers and
directors of the Corporation and its Affiliates.
2. Definitions. The following definitions are
applicable to the Plan:
"Award" - means the grant of Restricted Stock by
the Committee, as provided in 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.
"Bank" - means AmericanTrust Federal Savings
Bank, a savings institution and its predecessors and
successors.
"Code" - means the Internal Revenue Code of
1986, as amended.
"Committee" - means the Committee referred to in
Section 6 hereof.
"Continuous Service" - means the absence of any
interruption or termination of service as a
director, emeritus director, advisory director,
executive officer or employee of the Corporation or
any 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 any Affiliate or in the case of
transfers between payroll locations of the
Corporation or between the Corporation, its
subsidiaries or its successor.
"Corporation" - means AmTrust Capital Corp., a
Delaware corporation.
"Disinterested Person" - means any member of the
Board of Directors of the Corporation 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)(2)(ii) of Rule 16b-3
("Rule 16b-3") under the Securities Exchange Act of
1934, as amended; (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.
"ERISA" - means the Employee Retirement Income
Security Act of 1974, as amended.
"Participant" - means any director, emeritus
director, advisory director, executive officer or
employee of the Corporation or any Affiliate who is
selected by the Committee to receive an Award.
"Plan" - means the Recognition and Retention
Plan of the Corporation.
"Restricted Period" - means the period of time
selected by the Committee for the purpose of
determining when restrictions are in effect under
Section 3 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 3 hereof, so long as such restrictions are
in effect.
"Shares" - means the common stock, par value
$0.01 per share, of the Corporation.
3. 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 3, 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.
(a) At the time of an award of Restricted Stock,
the Committee shall establish for each
Participant a Restricted Period, 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 3, the Shares awarded as Restricted
Stock shall vest, and 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)
and (e) of this Section 3 and Section 4
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.
Subject to compliance with applicable Office
of Thrift Supervision Regulations, 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 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) If a Participant ceases to maintain Continuous
Service for any reason (other than death or
total or partial disability), 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 3 shall upon such termination
of Continuous Service be forfeited and
returned to the Corporation. If a Participant
ceases to maintain Continuous Service by
reason of death or total or partial
disability, Restricted Stock then still
subject to restrictions imposed by paragraph
(a) of this Section 3 will be free of those
restrictions in proportion to the portion of
the restricted period which shall have elapsed
at the time of such termination of Continuous
Service.
(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
Recognition and Retention Plan of AmTrust
Capital Corp. Copies of such Plan are on
file in the offices of the Secretary of
AmTrust Capital Corp., 20 West Fifth
Street, Peru, Indiana 46970.
(d) At the time of any Award, 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, in its sole discretion,
shall determine (the "Restricted Stock
Agreement").
(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 portions 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 3 or (ii) the forfeiture of such
shares under paragraph (b) of this Section 3,
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, 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 of the restrictions imposed
by paragraph (a) of this Section 3, the
Corporation shall redeliver to the Participant
(or where the relevant provision of paragraph
(b) of this Section 3 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 3
and the Shares represented by such
certificate(s) shall be free of the
restrictions referred to in paragraph (a) of
this Section 3.
4. 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 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 3 hereof.
5. 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 pursuant
to a qualified domestic relations order as defined
in the Code or Title I of ERISA or the rules
thereunder.
6. 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 direc-
tors as Disinterested Persons. The purpose of such
list shall be to evidence the status of such indi-
viduals 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.
7. Shares Subject to Plan. Subject to
adjustment by the operation of Section 4 hereof, the
maximum number of Shares with respect to which
Awards may be made under the Plan is 4% of the total
Shares issued in the Bank's conversion to stock
form. The shares with respect to which Awards may
be made under the Plan may be either authorized and
unissued shares or issued shares reacquired and held
as treasury shares. An Award shall not be
considered to have been made under the Plan 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
forfeiture has occurred. Any Award made pursuant to
this Plan, which Award is subject to the
requirements of Office of Thrift Supervision
Regulations, shall vest in five equal annual
installments with the first installment vesting on
the one year anniversary of the date of grant,
except in the event of death or total or partial
disability.
In the event Office of Thrift Supervision
Regulations are amended (the "Amended Regulations")
to permit shorter vesting periods, any Award made
pursuant to this Plan, which Award is subject to the
requirements of such Amended Regulations, may vest,
at the sole discretion of the Committee, in
accordance with such Amended Regulations.
8. 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 be 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 re-
tained in the employ of the Corporation, the Bank or
any Affiliate.
9. 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 may, in
its sole discretion, withhold from any payment or
distribution made under this Plan sufficient Shares
or withhold sufficient cash to cover any applicable
withholding and employment taxes. 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. No discretion or choice shall be
conferred upon any Participant with respect to the
form, timing or method of any such tax withholding.
10. Amendment or Termination. The Board of
Directors of the Corporation 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 any Award
previously made pursuant to the Plan.
Notwithstanding anything 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, as
amended, 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.
11. Term of Plan. The Plan shall become
effective upon its approval by the stockholders of
the Corporation. It shall continue in effect for a
term of ten years unless sooner terminated under
Section 10 hereof.
12. Initial Grants. By, and simultaneously
with, the approval of this Plan by the stockholders
of the Corporation, each member of the Board of
Directors of the Corporation at the time of the
Bank's conversion to stock form who is not an
Employee, is hereby granted an Award equal to .2%
of the shares issued in the mutual to stock
conversion of the Bank. Each such Award shall be
evidenced by a Restricted Stock Agreement in a form
approved by the Company and shall be subject in all
respects to the terms and conditions of this Plan,
which are controlling. All Awards of Restricted
Stock granted pursuant to this Section 12 shall be
rounded down to the nearest whole share to the
extent necessary to ensure that no shares of
Restricted Stock representing fractional shares are
issued. In addition, each Director elected
subsequent to the Conversion shall be issued an
Award equal to the fair market value of .2% of the
common stock issued in the Conversion, subject to
availability. Awards granted pursuant to this
Section 12 shall vest in five equal annual
installments, with the first installment vesting on
the one-year anniversary of the date of grant,
subject to such Director maintaining Continuous
Service with the Corporation or its affiliates. In
addition, no Plan Shares shall vest in any fiscal
year in which the Bank fails to meet all of its
fully phased-in capital requirements.
<PAGE>
AMTRUST CAPITAL CORP.
RECOGNITION AND RETENTION PLAN
RESTRICTED STOCK AGREEMENT
RS No. ___
Shares of Restricted Stock are hereby awarded on October 23, 1995 by
AmTrust Capital Corp. (the "Corporation"), to ________________________
(the "Grantee"), in accordance with the following terms and conditions, and the
conditions contained in the AmTrust Capital Corp. Recognition and Retention
Plan (the "Plan"):
1. Share Award. The Corporation hereby awards the Grantee ______
shares (the "Shares") of Common Stock, par value $.01 per share ("Common
Stock"), of the Corporation pursuant to the Plan, as the same may from time
to time be amended, and upon the terms and conditions and subject to the
restrictions therein and hereinafter set forth. A copy of the Plan as currently
in effect is incorporated herein by reference and is attached hereto.
2. Restrictions on Transfer and Restricted Period. During the period (the
"Restricted Period") commencing on October 23, 1995 and terminating on
October 23, 2000, the Shares may not be sold, assigned, transferred, pledged,
or otherwise encumbered by the Grantee, except as hereinafter provided.
Except as set forth below, the Shares will vest at a rate of 20% of the
initial award per year of Continuous Service (as defined in the Plan)
commencing on October 23, 1996 pursuant to the following schedule:
Amount
of Initial
Date of Vesting Award Vested
October 23, 1996 20%
October 23, 1997 20%
October 23, 1998 20%
October 23, 1999 20%
October 23, 2000 20%
Notwithstanding the foregoing, no Shares shall vest on any of the
foregoing dates if as of the preceding fiscal year end, AmericanTrust Federal
Savings Bank (the "Bank") is not in compliance with its fully phased-in capital
requirements. Subject to the restrictions set forth in the Plan, the Committee
referred to in Section 6 of the Plan or its successor (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 thereto, or to
remove any or all of such restrictions, whenever the Committee 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 the
Restricted Period.
3. Termination of Service. If the Grantee ceases to maintain
"Continuous Service" (as defined in the Plan) for any reason other than death
or disability, all shares which at the time of such termination of Continuous
Service are subject to the restrictions imposed by Section 2 above shall upon
such termination of Continuous Service be forfeited to the Corporation. If the
Grantee ceases to maintain "Continuous Service" (as defined in the Plan) by
reason of death or disability, the Shares then still subject to restrictions as
provided in the Plan imposed by Section 2 will be free of those restrictions as
provided in the Plan and shall not be forfeited.
4. Certificates for the Shares. The Corporation shall issue five
certificates in the name of the Grantee, each in respect of 20% of the Shares,
and shall hold such certificates on deposit for the account of the Grantee until
the expiration of the Restricted Period with respect to the Shares represented
thereby. Such certificates shall bear the following 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 Recognition and Retention Plan of AmTrust Capital
Corp. Copies of such Plan are on file in the offices of the Secretary of
AmTrust Capital Corp., 20 West Fifth Street, Peru, Indiana 46970.
The Grantee further agrees that simultaneously with the execution
of this Agreement, the Grantee shall execute five stock powers in favor of the
Corporation with respect to the Shares and that the Grantee shall promptly
deliver such stock powers to the Corporation.
5. Grantee's Rights. Except as otherwise provided herein, the
Grantee, as owner of the Shares, shall have all rights of a stockholder. During
the Restricted Period, the Grantee shall not himself vote such Shares as to
which the Restricted Period has not yet lapsed or expired (the "Restricted
Shares"). The Grantee hereby appoints a Trust Officer at First Bankers Trust
Company, N.A. to vote all Restricted Shares, in his or her sole discretion, at
any annual and special meetings of the stockholders of the Corporation and at
any continuations and adjournments of such meetings, upon any matters coming
before such meetings or adjournments. The Grantee agrees that he shall from
time to time appoint such other person or persons to vote the Restricted Shares
as the Committee in its sole discretion may designate. The Grantee further
agrees that with respect to Restricted Shares, he shall grant no proxy to vote
such shares except pursuant to this Section 5 of this Agreement, nor shall he
revoke any proxy granted pursuant to this Section 5 except with the consent of
the Committee.
Dividends, if any, paid on the Restricted Shares shall be held by
the Corporation for the account of the Grantee. All such withheld dividends
shall earn interest at an annual rate determined by the Committee.
6. Expiration of Restricted Period. Upon the lapse or expiration
of the Restricted Period with respect to a portion of the Shares, the
Corporation shall deliver to the Grantee (or in the case of a deceased Grantee,
to his legal representative) the certificate in respect of such shares and the
related stock power held by the Corporation pursuant to Section 4 above. The
Shares as to which the Restricted Period shall have lapsed or expired shall be
free of the restrictions referred to in Section 2 above and such certificate
shall not bear the legend provided for in Section 4 above.
7. Adjustments for Changes in Capitalization of the Corporation. In
the event of any change in the outstanding shares of Common Stock by reason
of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation, or any change in the
corporate structure of the Corporation or in the shares of Common Stock, the
number and class of shares covered by this Agreement shall be appropriately
adjusted by the Committee, whose determination shall be conclusive. Any shares
of Common Stock or other securities received, as a result of the foregoing, by
the Grantee with respect to Shares subject to the restrictions contained in
Section 2 above also shall be subject to such restrictions and the certificate
or other instruments representing or evidencing such shares or securities shall
be legended and deposited with the Corporation in the manner provided in Section
4 above.
8. Delivery and Registration of Shares of Common Stock. The
Corporation's obligation to deliver shares of Common Stock hereunder shall,
if the Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Grantee or any other person
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 such
shares or other action eliminating the necessity of such representation under
such Securities Act or other securities regulation. 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 the shares of Common Stock
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.
9. Plan and Plan Interpretations as Controlling. The Shares hereby
awarded and the terms and conditions herein set forth are subject in all
respects to the terms and conditions of the Plan, which are controlling. All
determinations and interpretations of the Committee shall be binding and
conclusive upon the Grantee or his legal representatives with regard to any
question arising hereunder or under the Plan.
10. Grantee Service. Nothing in this Agreement shall limit the right
of the Corporation or any of its Affiliates to terminate the Grantee's service
as a director, officer or employee, or otherwise impose upon the Corporation or
any of its Affiliates any obligation to employ or accept the services of the
Grantee.
11. Withholding and Social Security Taxes. Upon the termination of
the Restricted Period with respect to any Shares (or any such earlier time, if
any, that an election is made 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 have the right to withhold from the Grantee's compensation
an amount sufficient to fulfill its or its Affiliate's obligations for any
applicable withholding and employment taxes. Alternatively, the Corporation may
require the Grantee to pay the Corporation the amount of any taxes which the
Corporation is required to withhold with respect to the Shares, or, in lieu
thereof, to retain or sell without notice a sufficient number of Shares to cover
the amount required to be withheld. The Corporation shall withhold from any
cash dividends paid on the Restricted Stock an amount sufficient to cover taxes
owed as a result of the dividend payment. The Corporation's method of
satisfying its withholding obligations shall be solely in the discretion of the
Corporation, subject to applicable federal, state and local laws.
12. Grantee Acceptance. The Grantee shall signify his acceptance of
the terms and conditions of this Agreement by signing in the space provided
below and signing the attached stock powers and returning a signed copy
thereof and of the attached stock powers to the Corporation. IF A FULLY
EXECUTED COPY HEREOF AND THE ATTACHED STOCK POWERS HAVE NOT BEEN RECEIVED BY
THE CORPORATION, THE CORPORATION MAY REVOKE THIS AWARD, AND AVOID ALL
OBLIGATIONS UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
RESTRICTED STOCK AGREEMENT to be executed as of the date first above
written.
AMTRUST CAPITAL CORP.
By:
Bruce M. Borst, President, and
Chief Executive Officer
ACCEPTED:
(Street Address)
(City, State & Zip Code)
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to AmTrust
Capital Corp. (the "Corporation") _____ shares of the capital stock of the
Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. , and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
Dated:
In the presence of:
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to AmTrust
Capital Corp. (the "Corporation") _____ shares of the capital stock of the
Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. , and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
Dated:
In the presence of:
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to AmTrust
Capital Corp. (the "Corporation") _____ shares of the capital stock of the
Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. , and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
Dated:
In the presence of:
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to AmTrust
Capital Corp. (the "Corporation") _____ shares of the capital stock of the
Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. , and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
Dated:
In the presence of:
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to AmTrust
Capital Corp. (the "Corporation") _____ shares of the capital stock of the
Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. , and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
Dated:
In the presence of:
<PAGE>
EXHIBIT 5
<PAGE>
[SILVER, FREEDMAN & TAFF, L.L.P. LETTERHEAD]
November 12, 1996
Board of Directors
AmTrust Capital Corp.
20 West Fifth Street
Peru, Indiana 46970
Members of the Board:
We have acted as counsel to AmTrust
Capital Corp. (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 23,202 shares of
the Corporation's Common Stock, par value $.01 per
share (the "Common Stock"), to be offered pursuant to
the Recognition and Retention Plan of the Corporation
(the "Plan").
In this connection, we have reviewed
originals or copies, certified or otherwise identified
to our satisfaction, of the Plan and form of agreement
thereto, the Corporation's Certificate of
Incorporation, Bylaws, resolutions of its Board of
Directors and such other documents and corporate
records as we deem appropriate for the purpose of
rendering this opinion.
Based upon the foregoing, it is our opinion
that:
1. The shares of Common Stock
being so registered have been
duly authorized.
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,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23.1
<PAGE>
[SILVER, FREEDMAN & TAFF, L.L.P. LETTERHEAD]
November 12, 1996
Board of Directors
AmTrust Capital Corp.
20 West Fifth Street
Peru, Indiana 46970
Members of the Board:
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,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23.2
<PAGE>
[LETTERHEAD OF GEO S. OLIVE & CO., LLC]
We consent to the incorporation by
reference in this Registration Statement on Form S-8
of AmTrust Capital Corp. (the "Company") of our report
dated August 1, 1996 on the consolidated financial
statements of the Company which report is incorporated
by reference in the Company's Annual Report on Form
10-KSB for the three years ended June 30, 1996 filed
pursuant to the Securities Exchange Act of 1934.
GEO. S. OLIVE & CO., LLC
Indianapolis, Indiana
November 11, 1996
