<PAGE>
As filed with the Securities and Exchange Commission on November 25, 1997
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
SOBIESKI BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 35-1942803
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
2930 West Cleveland Road, South Bend, Indiana 46628
(Address of principal executive offices) (Zip Code)
SOBIESKI BANCORP, INC.
1995 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Robert L. Freedman, P.C.
Craig M. Scheer, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional
corporations)
7th Floor - East Tower
1100 New York Avenue, NW
Washington, DC 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================
==========
Title of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate Amount of
be registered registered(1) per share offering price (2)registrationfee(2)
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 96,600 shares (2) $1,495,290 $454
=====================================================================
==========
(1) Pursuant to Rule 416(c) 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 weighted average of the (i) weighted average
exercise price per share, with respect to shares subject to outstanding
options that were granted at fair market value, and (ii) average of the
closing bid and ask price per share of that class on the Nasdaq Stock
Market on November 21, 1997, with respect to shares that are not subject
to outstanding options.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Sobieski Bancorp, Inc. 1995 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.
I-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously or concurrently filed by Sobieski
Bancorp, Inc. (the "Company") with the Commission are hereby incorporated by
reference into this Registration Statement and the Prospectus to which this
Registration Statement relates (the "Prospectus"), which Prospectus has been or
will be delivered to the participants in the Plan covered by this Registration
Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1997 (File No. 0-25518) 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 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to above;
(c) the description of the Common Stock of the Company contained in the
Company's Registration Statement on Form 8-A (File No. 0-25518) filed on
February 7, 1995 and all amendments or reports filed for the purpose of
updating such description.
All documents 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 the Prospectus and to be a part hereof and 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 Marsha Nafrady, Secretary, Sobieski Bancorp, Inc., 2930 West
Cleveland Road, South Bend, Indiana 46628, telephone number (219) 271-8300.
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.
II-1
<PAGE>
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 proceeding 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.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
Regulation
S-B Reference to Prior
Exhibit Filing or Exhibit
Number Document Number Attached Hereto
4.1 Specimen form of common stock *
certificate of Sobieski Bancorp, Inc.
4.2 Certificate of Incorporation *
of Sobieski Bancorp, Inc.
4.3 Bylaws of Sobieski Bancorp, Inc. *
5 Opinion of Silver, Freedman Attached as Exhibit 5
& Taff, L.L.P.
23.1 Consent of Silver, Freedman Contained in Exhibit 5
& Taff, L.L.P.
23.2 Consent of Cooper's & Lybrand LLP Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature
Page
99 Sobieski Bancorp, Inc. 1995 Stock Attached as Exhibit 99
Option and Incentive Plan
* Filed as exhibits to the Registrant's Registration Statement on Form S-1
(File No. 33-88078) filed with the Commission on December 30, 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.
II-3
<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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(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
II-4
<PAGE>
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.
II-5<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 South Bend, State of Indiana, on November 25,
1997.
SOBIESKI BANCORP, INC.
By:/s/ Thomas F. Gruber
THOMAS F. GRUBER, President and Chief
Executive Officer (Duly Authorized
Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas F. Gruber, 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 all said attorney-in-fact and agent or his substitutes
or substitute may lawfully do or cause to be done by virtue hereof.
II-6<PAGE>
<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 the date indicated.
/s/ Thomas F. Gruber /s/ Leonard J. Dobosiewicz
THOMAS F. GRUBER LEONARD J. DOBOSIEWICZ
President, Chief Executive Director
Officer and Director
(Principal Executive Officer)
Date: November 25, 1997 Date: November 25, 1997
/s/ George J. Aranowski /s/ Joseph F. Nagy
GEORGE J. ARANOWSKI JOSEPH F. NAGY
Director
Date: November 25, 1997 Date: November 25, 1997
/s/ Joseph A. Gorny /s/ Robert J. Urbanski
JOSEPH A. GORNY ROBERT J. URBANSKI
Director Director
Date: November 25, 1997 Date: November 25, 1997
/s/ Arthur Skale
ARTHUR SKALE
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: November 25, 1997
II-6
<PAGE>
November 25, 1997
Board of Directors
Sobieski Bancorp, Inc.
2930 W. Cleveland Road
South Bend, Indiana 46628
Members of the Board:
We have acted as counsel to Sobieski Bancorp, Inc. (the "Company") 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 96,600 shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), to be offered
pursuant to the 1995 Stock Option and Incentive Plan of the Company (the
"Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan, the Company's
Certificate of Incorporation, Bylaws, resolutions of its Board of Directors and
such other documents and corporate records as we have deemed 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 Company 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 Company.
We hereby consent to the inclusion of our opinion as Exhibit 5 to this
Registration Statement. 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>
CONSENT OF INDEPENDENT ACCOUNTANTS
[LETTERHEAD OF COOPERS & LYBRAND, LLP]
We consent to the incorporation by reference in this Registration
Statement of Sobieski Bancorp, Inc. on Form S-8 of our report dated August 22,
1997, on our audits of the consolidated financial statements of Sobieski
Bancorp, Inc. and subsidiary as of June 30, 1997 and 1996 and for the years
ended June 30, 1997, 1996 and 1995, which report is included in the Annual
Report on Form 10-KSB of Sobieski Bancorp, Inc. for its fiscal year ended June
30,1997.
/s/ COOPERS & LYBRAND, LLP
South Bend, Indiana
November 24, 1997
<PAGE>
SOBIESKI BANCORP, INC.
1995 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 stockholders by providing a means for
attracting and retaining 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 qualify 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.
"Association" - means Sobieski Federal Savings and Loan Association
of South Bend, and any successor entity.
"Award" - means the grant of an Incentive Stock Option, a
Non-Qualified Stock Option, a Stock Appreciation Right, a Limited Stock
Appreciation Right or any combination thereof, as provided in the Plan.
"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 Association's advisory directors.
"Corporation" - means Sobieski Bancorp, Inc., a Delaware 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
1
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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)(2)(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 19 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 12
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 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.
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<PAGE>
"Option" - means an Incentive Stock Option or a Non-Qualified Stock
Option.
"Participant" - means any director, officer or employee of the
Corporation or any Affiliate who is selected by the Committee to receive an
Award and any director or advisory director of the Corporation who is granted
an Award pursuant to Section 19 hereof.
"Plan" - means the 1995 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.
"Right" - means a Limited Stock Appreciation Right or a Stock
Appreciation Right.
"Shares" - means the shares of common stock of 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.
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,
subject to Office of Thrift Supervision Regulation, 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.
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 11 hereof, the maximum number of Shares with respect to which Awards
may be made under the Plan is 10% of the total Shares issued in the
Association's conversion to the capital stock form. The Shares
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<PAGE>
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 and new
Awards may be granted under the Plan with respect to the number of Shares as to
which such termination has occurred.
6. General Terms and Conditions of Options and Rights. The Committee
shall have full and complete authority and discretion, subject to Office of
Thrift Supervision Regulations and 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. Notwithstanding the
foregoing and subject to compliance with applicable Office of Thrift
Supervision Regulations, no individual shall be granted Awards with respect to
more than 25% of the total shares subject to the Plan, and no director who is
not an employee of the Corporation or the Association shall be granted Awards
with respect to more than 5% of the total Shares subject to the Plan. All non-
employee directors of the Corporation, in the aggregate, may not be granted
Awards with respect to more than 30% of the total Shares subject to the Plan.
No Awards shall begin vesting earlier than one year from the date the Plan is
approved by stockholders of the Corporation and no Awards shall vest at a rate
in excess of 20% per year beginning from the date of grant.
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.
Furthermore, 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 "Option Agreement").
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 Option or
Right, such Participant has maintained Continuous Service since the date of
grant of such
4
<PAGE>
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 (excluding death or
disability 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 and in no event af-
ter 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. If a Participant to whom an Option or Right was granted shall cease to
maintain Continuous Service by reason of death or disability then, unless the
Committee shall have otherwise provided in the instrument evidencing the grant
of an Option or Right, all Options and Rights granted and not fully exercisable
shall become exercisable in full upon the happening of such event and shall
remain so exercisable (i) in the event of death for the period described in
paragraph (d) of this Section 7 and (ii) in the event of disability for a
period of three months following such date. 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
period 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 1 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
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death of any Participant to whom an Option was granted under the Plan,
irrespective of whether any Related Right shall have 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 exer-
cise 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.
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 date the Plan is adopted by the Board of Directors of
the Corporation 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
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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.
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. Subject to
vesting requirements contained in 12 C.F.R.Section 563b.3(g)(4) or any successor
regulation, 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.
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
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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. 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, class and exercise price 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.
12. 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
stockholders of the Corporation (except to the extent that dissenting
stockholders 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 6 months prior to such event shall have the right (subject to
the provisions of the Plan and any limitation or vesting period 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 securi-
ties, 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.
13. 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.
14. 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 retained in the employ of the
Corporation or any Affiliate.
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15. 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 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 Com-
mittee 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.
16. Withholding Tax. 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, and may, in its sole
discretion, withhold sufficient Shares to cover the amount of taxes which the
Corporation is required to withhold.
17. Amendment or Termination. The Board of Directors of the
Corporation may amend, suspend or terminate the Plan or any portion thereof at
any time, subject to Office of Thrift Supervision Regulations, but (except as
provided in Section 11 hereof) no amendment shall be made without approval of
the stockholders of the Corporation which shall, (i) increase the aggregate
number of Shares with respect to which Awards may be made under the Plan
(except pursuant to Section 11), (ii) materially increase the benefits accruing
to Participants, (iii) materially change the requirements as to eligibility for
participation in the Plan or (iv) 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 made pursuant to the Plan.
18. Effective Date and Term of Plan. The Plan shall become effective
upon its ratification by stockholders of the Corporation. It shall continue in
effect for a term of ten years unless sooner terminated under Section 17
hereof.
19. Initial Grant. By, and simultaneously with, the ratification of
this Plan by the stockholders of the Corporation, each member of the Board of
Directors of the Corporation and each advisory director of the Corporation at
the time of stockholder ratification of this Plan, who
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is not an Employee, is hereby granted a ten-year, Non-Qualified Stock Option to
purchase 4,830 shares at an Exercise Price per share equal to the Market Value
per share of the Shares on the date of grant. In addition, each non-employee
director of the Corporation elected subsequent to the date of stockholder
ratification of this Plan is hereby granted, as of the date he or she is
elected and qualified, a ten-year Non-Qualified Stock Option to purchase 4,830
shares at an Exercise Price equal to 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. All Options granted pursuant to this section shall vest in five
equal annual installments with the first installment vesting on the first
anniversary of the date of grant, subject to the director maintaining
Continuous Service with the Corporation or its Affiliates since the date of
grant.
20. 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.
