<PAGE>
As filed with the Securities and Exchange Commission on June 12, 1996
Registration No. 33-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-------------------------
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
-------------------------
SFS BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3366295
(State or other jurisdiction of incorporation (I.R.S. Employer Identification
or organization) No.)
261-263 State Street, Schenectady, New York 12305
(Address of principal executive offices) (Zip Code)
SFS BANCORP, INC.
1995 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Robert L. Freedman, P.C.
Beth A. Freedman, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
Suite 700 East
1100 New York Avenue, N.W.
Washington, DC 20005-3934
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Amount
Proposed maximum maximum of regis-
Title of securities Amount to be offering price aggregate offer- tration
to be registered registered per share ing price fee
- ------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 149,500 shares $12.625(2) $1,877,159(2) $648(2)
- ------------------------------------------------------------------------------
<FN> (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. Of the 149,500 shares being
registered hereby (i) 133,054 shares are subject to options with an
exercise price of $12.625 per share ($1,679,807 in the aggregate)
and (ii) the remaining 16,446 shares which have not been awarded to
date are being registered based upon the closing price of the
Common Stock on the Nasdaq National Market of $12.00 per share on
June 10, 1996 (197,352 in the aggregate).
</TABLE>
<PAGE>
<PAGE> I-1
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 SFS 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.
<PAGE>
<PAGE>II-1 PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously or concurrently filed by SFS Bancorp,
Inc. (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 year ended December
31, 1995 (File No. 0-25994) 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 period covered by the Report
referred to above;
(c) the Company's definitive Proxy Statement for its Annual Meeting of
Stockholders held on April 17, 1996; and
(d) the description of the common stock, par value $.01 per share, of the
Company contained in the Company's Registration Statement on Form S-1
(File No. 33-99422) filed with the Commission on March 17, 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 Richard D. Ammian, Senior Vice President and Secretary, 251-263
State Street, Schenectady, New York 12305, telephone number (518) 395-2300.
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.
<PAGE> II-2
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.
<PAGE>II-3
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.
--------
Reference to
Regulation Prior Filing or
S-B Exhibit Exhibit Number
Number Document Attached Hereto
- ----------------------------------------------------------------------------
4 Instruments defining the rights of
security holders, including debentures
SFS Bancorp, Inc. 1995 Stock
Option and Incentive Plan 4(a)
5 Opinion of Silver, Freedman & Taff,
L.L.P. 5
23 Consents of Experts and Counsel
Consent of Silver, Freedman & Taff, 23(a)
L.L.P.
Consent of KPMG Peat Marwick, LLP 23(b)
24 Power of Attorney Contained on
Signature Page
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
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.
<PAGE>II-4
(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>
<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 Schenectady, State of New York, on
June 10, 1996.
SFS BANCORP, INC.
By: /s/ Joseph H. Giaquinto
Joseph H. Giaquinto, Chairman of the Board,
President and Chief Executive Officer
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph H. Giaquinto, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution,
for him or her in his or her 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/ Richard D. Ammian /s/ Joseph H. Giaquinto
- ------------------------- --------------------------------
Richard A. Ammian, Senior Vice Joseph H. Giaquinto, Chairman of
President and Secretary the Board, President and Chief
Executive Officer
(Principal Executive and Operating
Officer)
Date: June 10, 1996 Date: June 10, 1996
/s/ John F. Assini, M.D. /s/ George J. Finster
John F. Assini, M.D., Vice George J. Finster, Director
Chairman of the Board
Date: June 10, 1996 Date: June 10, 1996
<PAGE>
<PAGE>
/s/ Gerald I. Klein /s/ Robert A. Schlansker
Gerald L. Klein, Director Robert A. Schlansker, Director
Date: June 10, 1996 Date: June 10, 1996
/s/ Richard A. Ahl
Richard A. Ahl, Executive Vice President,
Treasurer and Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: June 10, 1996
<PAGE>
<PAGE>
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-------------------------
SFS BANCORP, INC.
<PAGE>
<PAGE> EXHIBIT INDEX
Reference to
Regulation Prior Filing or
S-B Exhibit Exhibit Number
Number Document Attached Hereto
- -------------------------------------------------------------------------
4 Instruments defining the rights of
security holders, including debentures
SFS Bancorp, Inc. 1995 Stock Option and
Incentive Plan 4(a)
5 Opinion of Silver, Freedman & Taff, L.L.P. 5
23 Consents of Experts and Counsel
Consent of Silver, Freedman & Taff, L.L.P. 23(a)
Consent of KPMG Peat Marwick, LLP 23(b)
24 Power of Attorney Contained on
Signature Page
<PAGE> Exhibit 4(a)
SFS 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.
"Award" - means the grant of an Incentive Stock Option, a Non-Qualified
Stock Option or a Stock Appreciation Right, or any combination thereof, as
provided in the Plan.
"Bank" - means Schenectady Federal Savings and Loan Association and any
predecessor or successor entity.
"Cause" - means personal dishonesty, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform
stated duties, or the willful violation of any law, rule, regulation (other
than traffic violations or similar offenses) or a final cease and desist order
which results in a loss to the Bank or any Affiliate.
"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, director emeritus, advisory director,
officer or employee of the Corporation or an Affiliate, except that when used
with respect to any Options or Rights which at the time of exercise are
intended to be Incentive Stock Options, continuous service 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 director emeritus or advisory director,
continuous service shall mean availability to perform such functions as may be
required of the Bank's directors emeritus or advisory directors, as the case
may be.
"Corporation" - means SFS Bancorp, Inc., a Delaware corporation.
<PAGE>
"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)(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 18 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 or 10
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.
"Market Value" - means the average of the high and low quoted sales price
on the date in question (or, if there is no reported sale on such date, on the
last preceding date on which any reported sale occurred) of a Share on the
Composite Tape for the New York Stock Exchange-Listed Stocks, or, if on
such date the Shares are not quoted on the Composite Tape, on the New York
Stock Exchange, or, if the Shares are not listed or admitted to trading on
such Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which the Shares are listed or
admitted to trading, or, if the Shares are not listed or admitted to trading
on any such exchange, the mean between the closing high bid and low asked
quotations with respect to a Share on such date on the National Association of
Securities Dealers, Inc., Automated Quotations System, or any similar system
then in use, or, if no such quotations are available, the fair market value on
such date of a Share as the Committee shall determine.
"Non-Qualified Stock Option" - means an option to purchase Shares granted
by the Committee pursuant to Section 6 hereof, which option is not intended to
qualify under Section 422(b) of the Code.
"Option" - means an Incentive Stock Option or a Non-Qualified Stock
Option.
"Participant" - means any director, officer or employee of the
Corporation or any Affiliate who is selected by the Committee to receive an
Award and any director, director emeritus or advisory director of the
Corporation who is granted an Award pursuant to Section 18 hereof.
<PAGE>
"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 Stock Appreciation Right.
"Shares" - means the shares of common stock of the Corporation.
"Senior Officer" - means the Corporation's president, principal financial
officer, or principal accounting officer, any vice president of the
Corporation in charge of a principal business unit, division or function (such
as sales, administration or finance), any other officer who performs a policy-
making function, or any other person who performs similar policy-making
functions for the Corporation. Officers of the Corporation's Affiliates shall
be deemed Senior Officers of the Corporation if they perform such policy-
making functions for the Corporation.
"Stock Appreciation Right" - means a stock appreciation right with
respect to Shares granted by the Committee pursuant to Sections 6 and 9
hereof.
"Ten Percent Beneficial Owner" - means the beneficial owner of more than
ten percent of any class of the Corporation's equity securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934.
3. Administration. The Plan shall be administered by a Committee
consisting of three 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 and by applicable OTS regulations, the Committee shall have sole and
complete authority and discretion to (i) select Participants and grant Awards;
(ii) determine the number of Shares to be subject to types of Awards
generally, as well as to individual Awards granted under the Plan; (iii)
determine the terms and conditions upon which Awards shall be granted under
the Plan; (iv) prescribe the form and terms of instruments evidencing such
grants; and (v) establish from time to time regulations for the administration
of the Plan, interpret the Plan, and make all determinations deemed necessary
or advisable for the administration of the Plan. The Committee may maintain,
and update from time to time as appropriate, a list designating selected
directors as Disinterested Persons. The purpose of such list shall be to
evidence the status of such individuals as Disinterested Persons, and the
Board of Directors may appoint to the Committee any individual actually
qualifying as a Disinterested Person, regardless of whether identified as such
on said list.
A majority of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is present,
or acts approved in writing by a majority of the Committee without a meeting,
shall be acts of the Committee.
4. Participation in Committee Awards. The Committee may select from
time to time Participants in the Plan from those directors, officers,
employees and other participants (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.
<PAGE>
5. Shares Subject to Plan. Subject to adjustment by the operation of
Section 10 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 Bank's
conversion to the capital 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 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, except as expressly
limited by the Plan and applicable regulations, 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; provided, however, that such Options
or Rights granted hereunder may vest no more quickly than 20% per year
beginning as of a date one year following shareholder ratification of this
plan, except in the event of death or disability, in which case all previously
unvested shares shall become vested, (iii) the manner, time and rate
(cumulative or otherwise) of exercise of such Option or Right, and (iv) the
restrictions, if any, to be placed upon such Option or Right or upon Shares
which may be issued upon exercise of such Option or Right. The Committee may,
as a condition of granting any Option or Right, require that a Participant
agree not to thereafter exercise one or more Options or Rights previously
granted to such Participant.
7. Exercise of Options or Rights.
(a) Except as provided herein, an Option or Right granted under the
Plan shall be exercisable during the lifetime of the Participant to whom such
Option or Right was granted only by such Participant and, except as provided
in paragraphs (c) and (d) of this Section 7, no such Option or Right may be
exercised unless at the time such Participant exercises such Option or Right,
such Participant has maintained Continuous Service since the date of grant of
such Option or Right. Cash settlements of Rights may be made only in accord-
ance 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.
<PAGE>
(c) If a Participant to whom an Option or Right was granted shall
cease to maintain Continuous Service for any reason (including total or
partial disability and normal or early retirement, but excluding death and
termination of employment by the Corporation or any Affiliate for cause), such
Participant may, but only within the period of three months immediately suc-
ceeding such cessation of Continuous Service and in no event after the expira-
tion date of such Option or Right, exercise such Option or Right to the extent
that such Participant was entitled to exercise such Option or Right at the
date of such cessation, provided, however, that such right of exercise after
cessation of Continuous Service shall not be available to a Participant if the
Committee otherwise determines and so provides in the applicable instrument or
instruments evidencing the grant of such Option or Right. Notwithstanding the
foregoing, if a Participant to whom an Option or Right was granted shall cease
to maintain Continuous Service due to normal or early retirement or disability
and such Participant has served the Corporation or the Bank for at least ten
years, such Participant may exercise such Option or Right to the extent
vested, but only during the shortest of the following periods (A) the two-year
period immediately succeeding such cessation of Continuous Service, or (B) the
period remaining until the expiration date of such Option or Right. If the
Continuous Service of a Participant to whom an Option or Right was granted by
the Corporation is terminated for Cause, all rights under any Option or Right
of such Participant shall expire immediately upon the giving to the
Participant of notice of such termination.
(d) In the event of the death of a Participant while in the
Continuous Service of the Corporation or an Affiliate or within the two-year
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 death of any Participant to
whom an Option was granted under the Plan, irrespective of whether any Related
Right shall have theretofore been granted to the Participant or whether the
person entitled to exercise such Related Right desires to do so, the Committee
may, as an alternative means of settlement of such Option, elect to pay to the
person to whom such Option is transferred by will or by the laws of descent
and distribution, or in the case of an Option other than an Incentive Stock
Option, pursuant to a qualified domestic relations order, as defined in the
Code or Title I of ERISA or the rules thereunder, the amount by which the
Market Value per Share on the date of exercise of such Option shall exceed the
Exercise Price of such Option, multiplied by the number of Shares with respect
to which such Option is properly exercised. Any such settlement of an Option
shall be considered an exercise of such Option for all purposes of the Plan.
<PAGE>
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 as if other rights which
are Related to Incentive Stock Options were Incentive Stock Options. In the
case of a Related Option, such Related Option shall cease to be exercisable to
the extent of the Shares with respect to which the Related Stock Appreciation
Right was exercised. Upon the exercise or termination of a Related Option,
any Related Stock Appreciation Right shall terminate to the extent of the
Shares with respect to which the Related Option was exercised or terminated.
Notwithstanding the foregoing, no Stock Appreciation Right shall be
exercisable by a director, Senior Officer or Ten Percent Beneficial Owner of
the Corporation within six months of the date of its grant.
10. 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, exercise price and class of shares with respect to
which Awards theretofore have been granted under the Plan shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
<PAGE>
11. 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 six months prior to such event shall have the right
(subject to the provisions of the Plan and any vesting or other limitation
applicable to such Option or Right), thereafter and during the term of each
such Option or Right, to receive upon exercise of any such Option or Right an
amount equal to the excess of the fair market value on the date of such
exercise of the securities, cash or other property, or combination thereof,
receivable upon such merger, consolidation or combination in respect of a
Share over the Exercise Price of such Right or Option, multiplied by the
number of Shares with respect to which such Option or Right shall have been
exercised. Such amount may be payable fully in cash, fully in one or more of
the kind or kinds of property payable in such merger, consolidation or
combination, or partly in cash and partly in one or more of such kind or kinds
of property, all in the discretion of the Committee.
12. 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.
13. 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.
14. 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 ad-
mission of such shares to listing on any stock exchange on which Shares may
then be listed, and (ii) the completion of such registration or other
qualification of such Shares under any state or Federal law, rule or
regulation, as the Committee shall determine to be necessary or advisable.
<PAGE>
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.
15. 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.
16. Amendment or Termination. The Board of Directors of the Corporation
may amend, suspend or terminate the Plan or any portion thereof at any time,
but (except as provided in Section 10 hereof) no amendment shall be made
without approval of the stockholders of the Corporation which shall (i)
materially increase the aggregate number of Shares with respect to which
Awards may be made under the Plan, (ii) materially increase the aggregate
number of Shares which may be subject to Awards to Participants who are not
Employees or (iii) change the class of persons eligible to participate in the
Plan; provided, however, that no such amendment, suspension or termination
shall impair the rights of any Participant, without his consent, in any Award
theretofore made pursuant to the Plan.
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.
17. Effective Date and Term of Plan. The Plan shall become effective
upon its ratification by stockholders of the Corporation at least subsequent
to the Bank's conversion to a stock institution. It shall continue in effect
for a term of ten years unless sooner terminated under Section 17 hereof.
18. Initial Grant. By, and simultaneously with, the ratification of
this Plan, each member of the Board of Directors of the Corporation at the
time of stockholder ratification of the Plan who is not an Employee and each
director emeritus of the Bank, is hereby granted a ten-year, Non-Qualified
Stock Option to purchase a number of shares equal to .5% of the shares sold in
the Conversion at an Exercise Price per share equal to the Market Value per
share on the date of stockholder ratification of the Plan. In addition, each
non-employee director of the Corporation elected after stockholder
ratification of the Plan is hereby granted as of the date he or she is elected
and qualified ("election date") a ten-year Non-Qualified Stock Option to
purchase an amount of shares equal to .5% of the shares sold in the Conversion
at the applicable Market Value per share on the election date, subject to
availability. 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 18 shall be rounded
down to the nearest whole share to the extent necessary to ensure that no
options to purchase stock representing fractional shares are granted.
<PAGE> Exhibit 5
June 10, 1996
Board of Directors
SFS Bancorp, Inc.
251-263 State Street
Schenectady, New York 12305
Members of the Board:
We have acted as counsel to SFS Bancorp, Inc. (the "Corporation") in
connection with the preparation and filing with the Securities and Exchange
Commission of a registration statement on Form S-8 under the Securities Act of
1933 (the "Registration Statement") relating to 149,500 shares of the
Corporation'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
Corporation (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements 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(a)
June 10, 1996
Board of Directors
SFS Bancorp, Inc.
251-263 State Street
Schenectady, New York 12305
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(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors
SFS Bancorp, Inc.
We consent to incorporation by reference in the Registration Statement on
Form S-8 of SFS Bancorp, Inc. related to the 1995 Stock Option and Incentive
Plan of our report dated January 19, 1996, relating to the consolidated
balance sheets of SFS Bancorp, Inc. and subsidiary as of December 31, 1995 and
1994, and the related consolidated statements of income, changes in
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1995, which report appears in the December 31, 1995
annual report on Form 10-KSB of SFS Bancorp, Inc. We also consent to the
reference to our firm under the heading "Consents of Experts and Counsel."
Our report refers to the adoption of the provisions of Statement of Financial
Accounting Standards No. 144 "Accounting by Creditors for Impairment of a
Loan," Statement of Financial Accounting Standards No. 118, "Accounting by
Creditors Form Impairment of a Loan," Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities."
/s/ KPMG Peat Marwick LLP
Albany, New York
May 31, 1996
