As filed with the Securities and Exchange Commission on January 31, 2000
Registration No. 333-
_____________________________________________________________________________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
___________
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
____________
INDEPENDENCE COMMUNITY BANK CORP.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-3387931
(I.R.S. Employer Identification No.)
195 Montague Street, Brooklyn, New York 11201
(Address of principal executive offices) (Zip Code)
STOCK OPTIONS ASSUMED IN ACQUISITION OF
STATEWIDE FINANCIAL CORP.
(Full title of the plan)
Charles J. Hamm
Chairman of the Board, President and Chief Executive Officer
Independence Community Bank Corp.
195 Montague Street
Brooklyn, New York 11201
(Name and address of agent for service)
(718) 722-5300
(Telephone number, including area code, of agent for service)
Copies to:
Philip Ross Bevan, Esq.
David K. Teeples, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
(202) 347-0300
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
_____________________________________________________________________________
Amount of
Title of securities Amount to be Offering price Aggregate registration
to be registered registered per share offering price fee
_____________________________________________________________________________
Common Stock, par
value $.01 per share 10,350 $10.86(1) $112,401.00(2) $29.67(2)
_____________________________________________________________________________
_____________________________________________________________________________
(1) Reflects the weighted average exercise price of the options covered
hereby.
(2) Calculated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee, based on the weighted average option
exercise price of the shares issuable.
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 14
C.F.R. Section 230.462.
Purpose
_______
The purpose of this registration statement is to register on Form S-8
shares of common stock, par value $.01 per share (the "Common Stock"), of
Independence Community Bank Corp. (the "Company") issuable upon exercise of
certain stock options assumed by the Company in connection with the
acquisition by the Company of Statewide Financial Corp. ("Statewide").
PART I
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
________________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended ("Securities Act"),
and the Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by the Company
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
March 31, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999.
(c) The description of the Common Stock of the Company as
contained in Item 1, "Description of Registrant's Securities to be
Registered" in the Company's Registration Statement on Form 8-A as filed
on October 17, 1997 (File No. 000-23229).
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold.
II-1
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 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.
Item 4. Description of Securities.
Not applicable because the Company's Common Stock was registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not Applicable to this Registration Statement.
Item 6. Indemnification of Directors and Officers.
In accordance with the General Corporation law of the State of Delaware,
Articles 9 and 10 of the Registrant's Certification of Incorporation and
Article VI of the Registrant's Bylaws provide as follows:
Article 9 of Certification of Incorporation
Liability of Directors and Officers. The personal liability of the
directors and officers of the Corporation for monetary damages shall be
eliminated to the fullest extent permitted by the General Corporation Law of
the State of Delaware as it exists on the effective date of this Certificate
of Incorporation or as such law may be thereafter in effect. No amendment,
modification or repeal of this Article 9 shall adversely affect the rights
provided hereby with respect to any claim, issue or matter in any proceeding
that is based in any respect on any alleged action or failure to act prior to
such amendment, modification or repeal.
Article 10 of Certificate of Incorporation
Indemnification. The Corporation shall indemnify its directors,
officers, employees, agents and former directors, officers, employees and
agents, and any other persons serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
incurred in connection with any pending or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, with
respect to which such director, officer, employee, agent or other person is a
party, or is threatened to be made a party, to the full extent permitted by
the General Corporation Law of the State of
II-2
Delaware, provided, however, that the Corporation shall not be liable for
any amounts which may be due to any person in connection with a settlement
of any action, suit or proceeding effected without its prior written consent
or any action, suit or proceeding initiated by any person seeking
indemnification hereunder without its prior written consent. The
indemnification provided herein (i) shall not be deemed exclusive of any
other right to which any person seeking indemnification may be entitled under
any bylaw, agreement or vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action
in any other capacity, and (ii)shall inure to the benefit of the heirs,
executors and administrators of any such person. The Corporation shall
have the power, but shall not be obligated, to purchase and maintain
insurance on behalf of any person or persons enumerated above against any
liability asserted against or incurred by them or any of them arising out
of their status as corporate directors, officers, employees, or agents
whether or not the Corporation would have the power to indemnify them against
such liability under the provisions of this Article 10.
Article VI of Bylaws - Indemnification, etc. of Directors, Officers and
Employees
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal, administrative or investigative action, suit
or proceeding described in Section 6.1 may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors only upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that the person is not entitled to be indemnified by the
Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under the Corporation's
Certificate of Incorporation, any agreement, vote of stockholders or
disinterested directors or otherwise, both as to actions in their official
capacity and as to actions in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer
or employee and shall inure to the benefit of the heirs, executors and
administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer of employee of the Corporation, or is or was
serving at the request of the corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him or incurred by him
in any such capacity or arising out of
II-3
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of its Certificate
of Incorporation or this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer or employee provided in this Article
VI shall be in the nature of a contract between the Corporation and each
such person, and no amendment or repeal of any provision of this Article VI
shall alter, to the detriment of such person, the right of such person to
the advance of expenses or indemnification related to a claim based on an
act or failure to act which took place prior to such amendment or repeal.
Item 7. Exemption from Registration Claimed.
Not applicable because no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
Regulation S-K
Exhibit No. Document
____________ ____________
2 Agreement and Plan of Merger between Independence
Community Bank Corp. and Statewide Financial Corp.
dated April 12, 1999 (without exhibits)*
4 Form of Stock Certificate**
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
10.1 Statewide Financial Corp. 1996 Incentive Stock Option Plan
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney for any subsequent amendments
(located in the signature pages of this Registration
Statement).
__________________
* Incorporated by reference from the Company's Registration Statement on
Form S-4 (File No. 333-86349).
** Incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 333-30757).
Item 9. Undertakings.
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;
(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,
II-4
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 and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and (iii)
to include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change in such information in the Registration Statement; provided, however,
that clauses (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act and each filing of the Plan's
annual report pursuant to Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-5
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 of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Brooklyn, New York, on this 31st day of
January 2000.
INDEPENDENCE COMMUNITY BANK CORP.
By: /s/ Charles J. Hamm
_____________________
Charles J. Hamm
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby makes, constitutes and appoints Charles J. Hamm his or her true
and lawful attorney, with full power to sign for such person and in such
person's name and capacity indicated below, and with full power of
substitution any and all amendments to this Registration Statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
Name Title Date
________________________ _____________________ __________________
/s/ Charles J. Hamm Chairman, President
______________________ and Chief Executive January 31, 2000
Charles J. Hamm Officer (principal
executive officer)
/s/ Joseph S. Morgano Director, Executive
______________________ Vice President and January 31, 2000
Joseph S. Morgano Mortgage Officer
Executive Vice President
/s/ John B. Zurrell Chief Financial
_______________________ Officer (principal January 31, 2000
John B. Zurrell financial officer)
/s/ Willard N. Archie Director January 31, 2000
_______________________
Willard N. Archie
Name Title Date
__________________________ ____________________ _____________________
/s/ Robert D. Catell Director January 31, 2000
_______________________
Robert D. Catell
/s/ Rohit M. Desai Director January 31, 2000
_______________________
Rohit M. Desai
/s/ Chaim Y. Edelstein Director January 31, 2000
_______________________
Chaim Y. Edelstein
/s/ Donald H. Elliott Director January 31, 2000
_______________________
Donald H. Elliott
/s/ Robert W. Gelfman Director January 31, 2000
_______________________
Robert W. Gelfman
/s/ Scott M. Hand Director January 31, 2000
_______________________
Scott M. Hand
/s/ Donald M. Karp Director January 31, 2000
_______________________
Donald M. Karp
/s/ Donald E. Kolowsky Director January 31, 2000
_______________________
Donald E. Kolowsky
/s/ Janine Luke Director January 31, 2000
_______________________
Janine Luke
/s/ Malcolm MacKay Director January 31, 2000
_______________________
Malcolm MacKay
/s/ Wesley D. Ratcliff Director January 31, 2000
_______________________
Wesley D. Ratcliff
/s/Victor M. Richel Director January 31, 2000
_______________________
Victor M. Richel
Exhibit 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
------
TIMOTHY B. MATZ Telephone: (202) 347-0300 JEFFREY D. HAAS
STEPHEN M. EGE Facsimile: (202) 347-2172 KEVIN M. HOULIHAN
W. MICHAEL HERRICK KENNETH B. TABACH
GERARD L. HAWKINS PATRICIA J. WOHL
NORMAN B. ANTIN FIORELLO J. VICENCIO*
JOHN P. SOUKENIK* DAVID K. TEEPLES*
GERALD F. HEUPEL, JR. CRISTIN ZEISLER
JEFFREY A. KOEPPEL DANIEL R. KLEINMAN*
DANIEL P. WEITZEL ERIC M. MARION
_______________
PHILIP ROSS BEVAN OF COUNSEL
HUGH T. WILKINSON
ALLIN P. BAXTER
January 31, 2000 JACK I. ELIAS
SHERYL JONES ALU
*NOT ADMITTED IN D.C.
Board of Directors
Independence Community Bank Corp.
195 Montague Street
Brooklyn, New York 11201
Re: Registration Statement on Form S-8
10,350 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to Independence Community Bank Corp.,
a Delaware corporation (the "Corporation"), in connection with the
preparation and filing with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended, of a Registration Statement on
Form S-8 (the "Registration Statement"), relating to the registration of
hares of common stock, par value $.01 per share ("Common Stock"), of the
Corporation issuable upon exercise of certain stock options ("Option
Rights") assumed by the Corporation in connection with the merger of
Statewide Financial Corp. ("Statewide") with and into the Corporation in
accordance with the terms of the Agreement and Plan of Merger ("Agreement"),
dated as of April 12, 1999 by and among the Corporation and Statewide.
Capitalized terms not otherwise defined herein have the same meaning as
set forth in the Agreement. We have been requested by the Corporation
to furnish an opinion to be included as an exhibit to the Registration
Statement.
For this purpose, we have reviewed the Registration Statement and
related Prospectus, the Certificate of Incorporation and Bylaws of the
Corporation, the Agreement, a specimen stock certificate evidencing the
Common Stock of the Corporation and such other corporate records and
documents as we have deemed appropriate. We are relying upon the originals,
or copies certified or otherwise identified to our satisfaction, of the
corporate records of the Corporation and such other instruments,
certificates and representations of public officials, officers and
representatives of the Corporation as we have deemed relevant as a basis
for this opinion. In addition, we have assumed,
Board of Directors
January 31, 2000
Page 2
without independent verification, the genuineness of all signatures and
the authenticity of all documents furnished to us and the conformance in
all respects of copies to originals. Furthermore, we have made such factual
inquiries and reviewed such laws as we determined to be relevant for this
opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to Option Rights granted under the terms
of the Agreement will continue to be validly authorized on the dates the
Common Stock is issued pursuant to the Option Rights; (ii) on the dates the
Option Rights are exercised, the Option Rights granted under the terms of
the Agreement will constitute valid, legal and binding obligations of the
Corporation and will (subject to applicable bankruptcy, moratorium,
insolvency, reorganization and other laws and legal principles affecting the
enforceability of creditors' rights generally) be enforceable as to the
Corporation in accordance with their terms; (iii) the Option Rights are
exercised in accordance with their terms and the exercise price therefor is
paid in accordance with the terms thereof; (iv) no change occurs in
applicable law or the pertinent facts; and (v) the provisions of "blue sky"
and other securities laws as may be applicable will have been complied with
to the extent required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of
Common Stock to be issued pursuant to the exercise of the Option Rights,
when issued and sold pursuant to the exercise of the Option Rights and
upon receipt of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the reference to this firm under the caption
"Legal Opinion" in the Prospectus and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By:/s/ Philip Ross Bevan
____________________________________
Philip Ross Bevan, a Partner
Exhibit 10.1
STATEWIDE FINANCIAL CORP.
1996 INCENTIVE STOCK OPTION PLAN
1. PURPOSE
The purpose of the Statewide Financial Corp. (the "Company") 1996
Incentive Stock Option Plan (the "Plan") is to advance the interests of the
Company and its shareholders by providing those key employees of the Company
and its Affiliates, including Statewide Savings Bank, S.L.A. (the
"Association"), upon whose judgment, initiative and efforts the successful
conduct of the business of the Company and its affiliates largely depends,
with additional incentive to perform in a superior manner. A purpose of the
Plan is also to attract people of experience and ability to the service of
the Company and its Affiliates.
2. DEFINITIONS
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member, and (ii) an unincorporated trade or
business which is under common control with the Company as determined in
accordance with Section 414(c) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations issued thereunder. For purposes
hereof, a "controlled group of corporations" shall mean a controlled group
of corporations as defined in Section 1563(a) of the Code determined without
regard to Section 1563(a)(4) and (e)(3)(C).
(b) "Award" means a grant of Non-statutory Stock Options or Incentive
Stock Options under the provisions of this Plan.
(c) "Board of Directors" or "Board" means the Board of Directors of the
Company.
(d) "Committee" means a committee consisting of those members of the
Compensation/Benefits Committee of the Company who are non-employee members
of the Board of Directors, all of whom are "disinterested persons" as such
term is defined" under Rule 16b-3 of the Exchange Act, as promulgated by the
Securities and Exchange Commission.
(e) "Common Stock" means the Common Stock of the Company, no par value
per share.
(f) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(g) "Disability" means the permanent and total inability by reason of
mental or physical infirmity, or both, of an employee to perform the work
customarily assigned to him. Additionally, a medical doctor selected or
approved by the Board of Directors must advise the Committee that it is
either not possible to determine when such Disability will terminate or
that it appears probable that such Disability will be permanent during the
remainder of said participant's lifetime.
(h) "Fair Market Value" means, with respect to shares of Common Stock,
the fair market value as determined by the Committee in good faith and in a
manner established by the Committee from time to time; provided, however,
that if the shares of Common Stock are last sale reported over the counter
securities, then the "fair market value" of such shares on any date shall be
the average closing price for such securities for the five (5) trading days
immediately preceding the date in question, as reported on the NASDAQ system.
(i) "Incentive Stock Option" means an Option granted by the Committee
to a Participant, which Option is designated by the Committee as an
Incentive Stock Option pursuant to Section 8 and is intended to qualify
as an Incentive Stock Option Plan under Section 422 of the Code.
(j) "Non-statutory Stock Option" means an Option granted by the
Committee to a Participant pursuant to Section 7, which is not designated by
the Committee as an Incentive Stock Option or which is redesignated by the
Committee under Section 8.1(6) as a Non-statutory Stock Option.
(k) "Option" means Award granted under Section 7 or 8.
(l) "Participant" means an employee of the Company or its affiliates
chosen by the Committee to participate in the Plan.
(m) "Plan Year(s)" means a calendar year or years commencing on or
after January 1, 1996.
(n) "Retirement" means retirement at the normal or early retirement
date as set forth in any tax-qualified or non-tax qualified retirement
plan of the Company or as determined under any retirement policy of the
Company.
(o) "Section 16" means Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
(p) "Termination for Cause" means termination because of participant's
intentional failure to perform stated duties, personal dishonesty, willful
violation of any law, rule regulation (other than traffic violations or
similar offenses) or final cease and desist order.
3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to select participants,
to determine the amount of Awards, to establish the terms and conditions of
such Awards, to establish such rules and regulations as it deems necessary
for the proper administration of the Plan, subject to Subsection 8, to
impose a vesting schedule and to make whatever determinations and
interpretations in connection with the Plan it sees as necessary or
advisable. All determinations and interpretations made by the Committee
shall be binding and conclusive on all Participants in the plan and on
their legal representatives and beneficiaries.
2
4. TYPES OF AWARDS
Awards under the Plan may be granted in any one or a combination of
Non-statutory Stock Options and/or Incentive Stock Options.
5. STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 14, the maximum number of
shares reserved hereby for purchase pursuant to the exercise of options
granted under the Plan shall not exceed 370,300 shares of Common Stock of
the Company. These shares of Common Stock may be either authorized but
unissued shares or shares previously issued and reacquired by the Company.
To the extent that options granted under the Plan terminate, expire or are
canceled without having been exercised, new awards may be made with respect
to these shares.
6. ELIGIBILITY
Officers and other employees of the Company or its affiliates shall be
eligible to receive Awards and Directors who are not employees or officers
of the Company or its affiliates shall not be eligible to receive Awards
under the Plan.
7. NON-STATUTORY STOCK OPTIONS
7.1 Grant of Non-statutory Stock Options.
The Committee may, from time to time, grant Non-statutory
Stock Options to eligible employees and upon such terms and conditions
as the Committee may determine, and may grant Non-statutory Stock
Options in exchange for and upon surrender of previously granted Awards
under this Plan. Non-statutory Stock Options granted under this Plan
are subject to the following terms and conditions:
(a) Price. The purchase price per share of Common Stock
deliverable upon the exercise of each Non-statutory Stock
Option shall be determined by the Committee on the date the
options granted. Such purchase price shall not be less than
100% of the Fair Market Value of the Company's Common Stock
on the Date of Grant. Shares may be purchased only upon full
payment of the purchase price. Payment of the purchase price
may be made, in whole or in part, through the surrender of
shares of the Common Stock of the Company at the Fair Market
Value of such shares on the date of surrender.
(b) Terms of Options. The term during which each Non-
statutory Stock Option may be exercised shall be determined
by the Committee, but in no event shall a Non-statutory
Stock Option be exercisable in whole or in part more than 10
years from the Date of Grant.
3
(c) Termination of Employment. Except as provided in Section
7.1(d) hereof, unless otherwise determined by the Committee,
upon the termination of a Participant's service for any reason
other than Disability, death or Termination for Cause, the
Participant's Non-statutory Stock Options shall be exercisable
only as to those shares which were immediately exercisable by
the participant at the date of termination and only for a
period of three months following termination. Notwithstanding
any provision set forth herein nor contained in any Agreement
relating to the award of an Option, in the event of Termination
for Cause, all rights under the Participant's Non-statutory
Stock Options shall expire upon termination. In the event of
death or termination of service as a result of Disability of
any Participant, all Non-statutory Stock Options held by the
Participant, whether or not exercisable at such time, shall be
exercisable by the Participant or his legal representatives or
beneficiaries of the Participant for one year or such longer
period as determined by the Committee following the date of
the Participant's death or termination of employment due to
Disability, provided that in no event shall the period extend
beyond the expiration of the Non-statutory Stock Option term.
(d) Exception for Retirement. Notwithstanding the general
rule contained in Section 7.1(c) above, all options which
have become fully vested under the terms of Section 9 hereof
held by a Recipient whose employment with the Company or an
Affiliate terminates due to Retirement may be exercised for
the lesser of (i) the remaining term of the option, or (ii)
12 months. Any Incentive Stock Option exercised more than 3
months after a Participant's retirement will be treated as a
Non-statutory Stock Option.
8. INCENTIVE STOCK OPTIONS
8.1 Grant of Incentive Stock Options.
The Committee may, from time to time, grant Incentive Stock
Options to eligible employees. Incentive Stock Options granted
pursuant to the Plan shall be subject to the following terms and
conditions:
(a) Price. The purchase price per share of Common Stock
deliverable upon the exercise of each Incentive Stock Option
shall be not less than 100% of the Fair Market Value of the
Company's Common Stock on the Date of Grant. However, if a
Participant owns stock possessing more than 10% of the total
combined voting power of all classes of Common Stock of the
Company, the purchase price per share of Common Stock
deliverable upon the exercise of each Incentive Stock Option
shall not be less than 110% of the Fair Market Value of the
Company's Common Stock on the Date of Grant. Shares may be
purchased only upon payment of the full purchase price.
Payment of the purchase price may be made, in whole or in
part, through the
4
surrender of shares of the Common Stock of the Company at the
Fair Market Value of such shares on the date of surrender.
(b) Amounts of Options. Incentive Stock Options may be
granted to any eligible employee in such amounts as
determined by the Committee. In the case of an option
intended to qualify as an Incentive Stock Option, the
aggregate Fair Market Value (determined as of the time the
option is granted) of the Common Stock with respect to which
Incentive Stock Options granted are exercisable for the
first time by the Participant during any calendar year shall
not exceed $100,000. The provisions of this Section 8.1(b)
shall be construed and applied in accordance with Section
422(d) of the Code and the regulations, if any, promulgated
thereunder. To the extent an award is in excess of such
limit, it shall be deemed a Non-statutory Stock Option. The
Committee shall have discretion to redesignate options
granted as Incentive Stock Options as Non-statutory options.
(c) Terms of Options. The term during which each Incentive
Stock Option may be exercised shall be determined by the
Committee, but in no event shall an Incentive Stock Option be
exercisable in whole or in part more than 10 years from the
Date of Grant. If at the time an Incentive Stock Option is
granted to an employee, the employee owns Common Stock
representing more than 10% of the total combined voting power
of the Company (or, under Section 422(d) of the Code, is
deemed to own Common Stock representing more than 10% of the
total combined voting power of all such classes of Common
Stock, by reason of the ownership of such classes of Common
Stock, directly or indirectly, by or for any brother, sister,
spouse, ancestor or lineal descendent of such employee, or by
or for any corporation, partnership, estate or trust of which
such employee is a shareholder, partner or beneficiary), the
Incentive Stock Option granted to such employee shall not be
exercisable after the expiration of five years from the Date
of Grant. No Incentive Stock Option granted under this Plan is
transferable except by will or the laws of descent and
distribution and is exercisable in his lifetime only by the
Participant to whom it is granted.
(d) Termination of Employment. Except as provided in Section
8.1(e) hereof, upon the termination of a Participant's service
for any reason other than Disability, death or Termination for
Cause, the Participant's Incentive Stock Options shall be
exercisable by the Participant at the date of termination and
only for a period of three months following termination.
Notwithstanding any provisions set forth herein nor contained
in any Agreement relating to an award of an Option, in the
event of Termination for Cause all rights under the
Participant's Incentive Stock Options shall expire immediately
upon termination.
Unless otherwise determined by the Committee, in the event of
death or termination of service as a result of Disability of
any Participant, all Incentive Stock Options held by such
Participant, whether or not exercisable at such time, shall
be exercisable by
5
the Participant or the participant's legal representatives or
beneficiaries of the Participant for one year following the date
of the participant's death or termination of employment as a
result of Disability. In no event shall the exercise period
extend beyond the expiration of the Incentive Stock Option term.
(e) Exception for Retirement. Notwithstanding the general rule
contained in Section 8.1(d) above, all options which have become
fully vested under the terms of Section 9 hereof held by a
Participant whose employment with the Company or an Affiliate
terminates due to Retirement may be exercised for the lesser of
(i) the remaining term of the option or (ii) 12 months. Any
Incentive Stock Option exercised more than 3 months after a
Participant's Retirement will be treated as a Non-statutory
Stock Option.
(f) Compliance with Code. The options granted under this
Section 8 of the Plan are intended to qualify as incentive
stock options within the meaning of Section 422 of the Code,
but the Company makes no warranty as to the qualification of
any option as an incentive stock option within the meaning
of Section 422 of the Code.
9. VESTING REQUIREMENTS
Notwithstanding anything contained in Section 3 hereof, in compliance
with the regulations of the Office of Thrift Supervision, all options
granted hereunder, whether under Section 7 or Section 8, shall be subject
to the following minimum vesting schedule:
All options shall be subject to a five-year vesting schedule, vesting
20 percent a year, with vesting commencing on the first anniversary of the
date of grant. By the fifth anniversary of the date of grant, all options
shall have vested; provided, however, that in the event of a participant's
disability or death, all options then held by such participant or his estate
shall become immediately exercisable for the terms set forth in Sections 7
and 8 hereof.
The Committee shall have the authority in its discretion, to impose
greater vesting requirements than those set forth above.
10. SURRENDER OPTION
In the event of a Participant's termination of employment as a result
of death, disability or Retirement, the Participant (or the Participant's
personal representative(s), heir(s), or devisee(s)) may, in a form
acceptable to the Committee, make application to surrender all or part of
options held by such Participant in exchange for a cash payment from the
Company of an amount equal to the difference between the Fair Market Value
of the Common Stock on the date of termination of employment and the
exercise price per share of the option on the Date of Grant. Although it
is anticipated that the Committee will not unreasonably object to such
an application, whether the Committee accepts such application or determines
to make payment, in whole or part is within its
6
absolute and sole discretion, it being expressly understood that the
Committee is under no obligation to any Participant whatsoever to make
such payments. In the event that the Committee accepts such application
and the Company determines to make payment, such payment shall be in lieu
of the exercise of the underlying option and such option shall be canceled.
11. RIGHTS OF A SHAREHOLDER: NONTRANSFERABILITY
No Participant shall have any rights as a shareholder with respect to
any shares covered by a Non-statutory and/or Incentive Stock Option until
the date of issuance of a stock certificate for such shares. Nothing in
this Plan or in any Award granted confers on any person any right to
continue in the employ of the Company or its Affiliates or to continue to
perform services for the Company or its Affiliates or interferes in any
way with the right of the Company or its Affiliates to terminate a
Participant's services as an officer or other employee at any time.
No Award under the Plan shall be transferable by the Participant other
than by will or the laws of descent and distribution and may only be
exercised during his lifetime by the Participant or by a guardian or legal
representative.
12. AGREEMENT WITH GRANTEES
Each Award of Options will be evidenced by a written agreement,
executed by the Participant and the Company which describes the conditions
for receiving the Awards including the date of Award, the exercise price,
applicable vesting and exercise periods, and any other terms and conditions
as may be required by the Board of Directors or applicable securities law.
13. DILUTION AND OTHER ADJUSTMENTS
(a) In the event of any change in the outstanding shares of Common
Stock of the Company by reason of any stock dividend or split,
recapitalization, combination or exchange of shares, or other similar
corporate change, or other increase or decrease in such shares without
receipt or payment of consideration by the Company, the Committee will
make such adjustments to previously granted Awards, to prevent dilution
or enlargement of the rights of the Participant, including any or all of
the following:
(i) adjustments in the aggregate number or kind of shares of
Common Stock which may be awarded under the Plan;
(ii) adjustments in the aggregate number or kind of shares of
Common Stock covered by Awards already made under the Plan; and/or
(iii) adjustments in the purchase price of outstanding Incentive
and/or Non-statutory Stock Options, or any Limited Rights attached
to such options.
7
No such adjustments may, however, materially change the value of benefits
available to a Participant under a previously granted Award.
(b) In the event of a consolidation, reorganization, merger or sale
of all or substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities, cash or
other property of any other corporation or business entity or in the event
of a liquidation of the Company, the Committee and the Board of Directors
will take one or more of the following actions, as to outstanding options:
(i) provide that such options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), provided that any such options substituted for
Incentive Stock Options shall meet the requirements of Section 424(a) of
the Code, or
(ii) in the event of a merger under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a
cash payment for each share surrendered in the merger (the "Merger
Price"), make or provide for a cash payment to the Participants equal
to the difference between (A) the Merger Price times the number of
shares of Common Stock subject to such outstanding Options (to the
extent then exercisable at prices not in excess of the Merger Price)
and (B) the aggregate exercise price of all such outstanding Options
in exchange for the termination of such Options.
14. TAX WITHHOLDING
The Participant shall pay to the Company, or make provision
satisfactory to the Committee for payment of, any taxes required by law
to be withheld in respect of options under the Plan no later than the date
of the event creating the tax liability. In the Committee's sole discretion,
a Participant (other than a Participant subject to Section 16, who shall
be subject to the following sentence) may elect to have such tax obligations
paid, in whole or in part, in shares of Common Stock, including shares
retained from the option creating the tax obligation. With respect to
Participants subject to Section 16, upon the issuance of shares of Common
Stock in respect of an option, such number of shares issuable shall be
reduced by the number of shares necessary to satisfy such Participant's
federal, and where applicable, state withholding tax obligations. For
withholding tax purposes, the value of the shares of Common Stock shall
be the Fair Market Value on the date the withholding obligation is incurred.
The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
15. AMENDMENT OF THE PLAN
The Committee may at any time, and from time to time, modify or amend
the Plan in any respect; provided that shareholder approval shall be
required for any such modification or amendment which:
8
(a) materially increases the maximum number of shares for which
options may be granted under the Plan (subject, however, to the
provisions of Section 13 hereof);
(b) reduces the exercise price at which Awards may be granted (subject,
however, to the provisions of Section 13 hereof);
(c) extends the period during which options may be granted or exercised
beyond the times originally prescribed; or
(d) changes the persons eligible to participate in the Plan.
Failure to ratify or approve amendments or modifications to subsections
(a)through (d) of this Section by shareholders shall be effective only as
to the specific amendment or modification requiring such ratification. Other
provisions, sections, and subsections of this Plan will remain in full force
and effect.
No such termination, modification or amendment may affect the rights of
a Participant under an outstanding Award.
16. APPROVAL AND EFFECTIVE DATE OF PLAN
Pursuant to OTS regulations, if the Plan is to be implemented on or
before September 29, 1996, the Plan must be approved by a majority of the
shares eligible to be voted at a meeting of the Company's stockholders and
then submitted to the OTS for its review and approval. This Plan will be
effective as of the first day after its approval by the Company's
stockholders and the OTS, assuming it is so approved. If the Plan receives
the approval of less than a majority of the shares eligible to be voted at
such meeting, but receives the approval of a majority of the shares actually
voted at the meeting, the Plan will be effective as of October 1, 1996.
17. TERMINATION OF THE PLAN
The right to grant Awards under the Plan will terminate ten (10) years
after the Effective Date of the Plan. The Board of Directors has the right
to suspend or terminate the Plan at any time, provided that no such action
will, without the consent of a Participant, adversely affect his rights
under a previously granted Award.
18. APPLICABLE LAW
The Plan will be administered in accordance with the laws of the State
of New Jersey.
9
19. COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the
extent any provisions of the Plan or action by the Committee fail to so
comply, it shall be deemed null and void, to the extent permitted by law
and deemed advisable by the Committee. Notwithstanding any other provision
of the Plan, in order to qualify for the exemption provided by Rule 16b-3
of the Act, any Common Stock acquired by a Participant subject to Section 16
of the Act (a "Section 16 Participant") upon exercise of an Option the
common stock acquired may not be sold for six (6) months after the date of
grant of the Option.
10
Exhibit 23.2
Consent of Ernst & Young LLP
Independent Accountants
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333-0000), pertaining to the Stock Options
Assumed in Acquisition of Statewide Financial Corp., of our report dated
April 30, 1999, with respect to the consolidated financial statements of
Independence Community Bank Corp. included in its Annual Report (Form
10-K) for the year ended March 31, 1999, filed with the Securities and
Exchange Commission.
/s/Ernst & Young LLP
New York, New York
January 31, 2000
