SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by Registrant [X]
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Check the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission
[X] Definitive Proxy Statement Only (as Permitted by Rule 14a-6(e)(2))
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
ACCESS ANYTIME BANCORP, INC.
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[X] No fee required.
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1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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pursuant to Exchange Act Rule 0-11: Set forth the amount on which
the filing fee is calculated and state how it was determined.
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[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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4) Date Filed:
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 30, 1997
The Annual Meeting of Stockholders of Access Anytime Bancorp, Inc. (the
"Company") will be held at Clovis Community College's Town Hall, 417 Schepps
Boulevard, Clovis, New Mexico, on Friday, May 30, 1997, at 9:00 a.m., local
time.
A Revocable PROXY and PROXY STATEMENT for the meeting are enclosed.
The meeting is for the purpose of considering and acting upon:
1. The election of six directors of the Company.
2. A proposal to amend the Certificate of Incorporation to limit the
liability of directors of the Company in accordance with Delaware
law.
3. A proposal to amend the Certificate of Incorporation to eliminate
certain restrictions on the issuance of stock to directors, officers
and controlling persons.
4. A proposal to amend the Certificate of Incorporation to add a "fair
price" provision.
5. A proposal to approve the 1997 Stock Option and Incentive Plan.
6. A proposal to approve the Non-Employee Director Retainer Plan.
7. The ratification of the appointment of Robinson Burdette Martin &
Cowan, L.L.P. as independent public accountants to audit the
consolidated financial statements of the Company and its subsidiaries
for the fiscal year ending December 31, 1997.
8. Such other matters as may properly come before the meeting or any
adjournments thereof.
Any action may be taken on any one of the foregoing proposals at the meeting on
the date specified above and all adjournments thereof. Stockholders of record
at the close of business on April 9, 1997 are the stockholders entitled to vote
at the meeting and any adjournments thereof.
You are requested to fill in and sign the enclosed proxy which is solicited by
the Board of Directors and to mail it promptly in the enclosed envelope. The
proxy will not be used if you attend the meeting and vote in person.
BY ORDER OF THE BOARD OF DIRECTORS
Kathy Allenberg
Corporate Secretary
Clovis, New Mexico
April 17, 1997
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IMPORTANT
THE PROMPT RETURN OF PROXIES WILL SAVE THE COMPANY THE EXPENSE OF FURTHER
REQUESTS FOR PROXIES IN ORDER TO INSURE A QUORUM. A SELF-ADDRESSED ENVELOPE IS
ENCLOSED FOR YOUR CONVENIENCE. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED
STATES.
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PROXY STATEMENT
FOR
ACCESS ANYTIME BANCORP, INC.
801 PILE STREET
CLOVIS, NEW MEXICO 88101
(505) 762-4417
ANNUAL MEETING OF STOCKHOLDERS
MAY 30, 1997
This Proxy Statement is furnished in connection with the solicitation
of proxies by the Board of Directors of Access Anytime Bancorp, Inc. (the
"Company") to be used at the Annual Meeting of Stockholders of the Company
which will be held at Clovis Community College's Town Hall, 417 Schepps
Boulevard, Clovis, New Mexico, on Friday, May 30, 1997 at 9:00 a.m., local
time. The accompanying Notice of Annual Meeting and this Proxy Statement are
being first mailed to stockholders on or about April 17, 1997.
The Company is a Delaware corporation which was organized in 1996 for
the purpose of becoming the thrift holding company of First Savings Bank,
F.S.B. (the "Bank"). The Bank's Board of Directors has approved a name
change for the Bank to "FirstBank". The Company owns all of the outstanding
stock of the Bank, which is the Company's principal asset.
VOTING INFORMATION
Stockholders who execute proxies retain the right to revoke them at any
time. Unless so revoked, the shares represented by such proxies will be voted
at the meeting and all adjournments thereof. Proxies may be revoked by written
notice to the Corporate Secretary of the Company or the filing of a later proxy
prior to a vote being taken on a particular proposal at the meeting. A written
notice of revocation of a proxy should be sent to the Corporate Secretary,
Access Anytime Bancorp, Inc., P.O. Box 1569, 801 Pile Street, Clovis, New
Mexico 88101, and will be effective if received by the Corporate Secretary
prior to the meeting. A previously submitted proxy will also be revoked if a
stockholder attends the meeting and votes in person. Proxies solicited by the
Board of Directors of the Company will be voted as directed by the stockholder
or, in the absence of such direction, proxies will be voted "FOR" the nominees
for director set forth herein, "FOR" Proposals 2, 3, 4, 5 and 6 as hereinafter
described, and "FOR" the approval of the appointment of Robinson Burdette
Martin & Cowan, L.L.P. as independent public accountants, and as determined by
a majority of the Board of Directors with respect to any other matter(s) coming
before the meeting.
Stockholders of record as of the close of business on April 9, 1997, are
entitled to one vote for each share then held. As of April 9, 1997, the
Company had 1,193,076 shares of common stock issued and outstanding. With
respect to the election of directors, a stockholder
1
may, by properly completing the enclosed proxy, vote in favor of all nominees
or withhold his or her votes as to all nominees or as to specific nominees.
Directors will be elected by the affirmative vote of a majority of the shares
represented at the meeting in person or by proxy and entitled to vote in an
election of directors. Cumulative voting is permitted in the election of
directors, and allows a stockholder to cumulate the total number of votes he
or she may cast in the election of directors and cast any number of those
votes for one or more of the nominees. If a stockholder desires to exercise
such cumulative voting rights, the stockholder must clearly state on his or
her proxy the intent to exercise those rights and vote accordingly. The
persons voting the proxies will have sole discretion in determining whether a
stockholder has clearly marked his or her proxy with respect to cumulative or
other voting, and if a proxy is not clearly marked, the stockholder will be
contacted for clarification.
Approval of the amendments to the Certificate of Incorporation proposed in
Proposals 2, 3 and 4, and approval of the 1997 Stock Option and Incentive Plan
and the Non-Employee Director Retainer Plan also require a quorum to be present
or represented at the meeting. However, the affirmative vote of the holders of
a majority of the shares entitled to vote (whether or not present) at the
Annual Meeting is required for approval of each of such matters.
Ratification of the hiring by the Board of Directors of Robinson Burdette
Martin & Cowan, L.L.P. as the independent public accountants for the 1997
fiscal year will be by the affirmative vote of a majority of the shares
represented at the meeting in person or by proxy and entitled to vote on the
ratification of the External Auditors.
All other matters properly coming before the meeting will be decided by
the affirmative vote of a majority of the shares represented at the meeting in
person or by proxy and entitled to vote on such matters, except as otherwise
required by law or by the Company's Certificate of Incorporation or Bylaws.
The votes will be counted by the inspectors appointed by the Board of
Directors, who will determine, among other things, the number of votes
necessary for the stockholders to take action in accordance with the
foregoing requirements and the votes withheld or cast for or against each
matter. All properly executed proxies and ballots, regardless of the nature
of the vote or absence of the vote indication thereon (but not including
broker non-votes), will be counted in determining the number of shares
represented at the meeting. Abstentions clearly stated on a proxy and broker
non-votes will not be counted as affirmative votes, but the failure to give
clear voting instructions on a proxy (as opposed to clearly stating an intent
to abstain from voting) will result in the proxy being voted "FOR" the
nominees for director identified herein and in favor of each of the other
proposals set forth herein. An abstention from voting on a matter by a
shareholder present in person or represented by proxy at the meeting has the
same legal effect as a vote AGAINST the matter even though the shareholder or
interested parties analyzing the results of the voting may interpret such a
vote differently. Shares not voted by brokers and other entities holding
shares on behalf of beneficial owners will not be counted in calculating
voting results on those matters for which the broker or other entity has not
voted. A majority of the shares of the Company entitled to vote, represented
in person or by proxy, shall constitute a quorum under the Company's Bylaws.
2
The Company is not aware of any arrangements, the operation of which might
at a subsequent date result in a change in control of the Company.
PRINCIPAL HOLDERS OF VOTING SECURITIES
Persons and groups owning in excess of 5% of the Company's common stock
are required to file certain reports regarding such ownership pursuant to the
Securities Exchange Act of 1934, as amended. Based upon such reports and upon
the Company's stock ownership records and available information concerning
non-objecting beneficial owners, management knows of the following persons
who owned more than 5% of the Company's outstanding shares of common stock as
of April 9, 1997. Ownership is direct unless otherwise specified. Shown
below are the shares of common stock beneficially owned by all executive
officers and directors (not including nominees who are not currently
directors) of the Company as a group as of April 9, 1997. Individual
beneficial ownership of shares by the Company's directors is set forth under
"Proposal 1 - Election of Directors".
Name and Address of Amount and Nature of Percent of Shares of Capital
Beneficial Owner Beneficial Ownership (1) Stock Outstanding (1)
------------------- ------------------------ ----------------------------
Drs. Moss, Boese & Abshere 84,500 (2) 7.1%
P.O. Box 1508
Clovis, NM 88101
Financial Focus, L.P. 103,968 (3) 8.7%
% Stephen H. Hersch
1758 West Jackson St., Suite 150
Painesville, OH 44077
Robert Chad Lydick 60,578 (4) 5.1%
P.O. Box 1386
Clovis, NM 88101
All Executive Officers 181,535 (2) 15.2%
and Directors (not including
nominees who are not currently
Directors) as a Group (8 persons)
(1) Shares of common stock subject to options currently exercisable, or
exercisable within sixty (60) days, are deemed outstanding for computing
the percentage of ownership of the person holding the options, but not
deemed outstanding for computing the percentage of ownership of any other
person.
3
(2) Includes shares owned by spouses of the named beneficial owners or as
custodian or trustee for minor children. as to which shares the named
individuals effectively exercise shared voting and investment power.
(3) Based on information provided to the Company by Financial Focus, L.P. The
Company makes no representation as to the accuracy and completeness of
such information.
(4) Mr. Lydick has shared voting and dispositive powers over all of these
shares with his spouse and/or his father.
4
PROPOSAL 1 - ELECTION OF DIRECTORS
THE BOARD OF DIRECTORS URGES YOU TO VOTE "FOR" THE NOMINEES FOR THE BOARD
OF DIRECTORS DESCRIBED BELOW. Proxies will be so voted unless stockholders
specify otherwise in their proxies. Directors will be elected by an affirmative
vote of a majority of the shares represented at the meeting in person or by
proxy and entitled to vote in the election of directors.
The Board has set the number of directors at eleven. At the meeting,
there will be six director positions available to vote on. The Nominating
Committee of the Board of Directors has nominated two incumbent Directors,
Everett Frost and Charles Guthals, to stand for re-election to fill two of the
available positions with terms expiring in 2000. The Nominating Committee of
the Board of Directors has nominated four new persons as director for the four
remaining positions: Cornelius Higgins and David Ottensmeyer for terms
expiring in 2000, and Allan Moorhead and James Clark for terms expiring in
1999. Any persons nominated and elected, except the two current directors, to
fill any director position will be subject to the approval of the Office of
Thrift Supervision ("OTS"). In the event any director is not approved by the
OTS, the Board of Directors will attempt to fill the position with a qualified
candidate.
Pursuant to the Company's Bylaws (Article II, Section 13), nominations may
be made by stockholders to be voted upon at the meeting if they are made in
writing and delivered to the Corporate Secretary of the Company at least five
days prior to the date of the meeting. Upon delivery, such nominations shall be
posted in a conspicuous place in each office of the Company. Ballots bearing
the names of all persons nominated by the Nominating Committee (being the six
nominees listed above) and by stockholders shall be provided for use at the
meeting. A stockholder wishing to vote for a person nominated for director by a
stockholder must attend the meeting and vote in person. Under federal
securities regulations, no proxy shall confer authority to vote for the
election of any person to any office for which a bona fide nominee is not named
in this Proxy Statement.
Each of the nominees has consented to being named in this Proxy
Statement and to serve if elected. If any nominee is unable to serve, the
shares represented by all valid proxies will be voted for the election of
such substitute as the Board of Directors may recommend. At this time, the
Board of Directors knows of no reason why any named nominee might be unable
to serve.
The following table sets forth for each nominee, for each director
continuing in office, and for each executive officer identified in the summary
compensation table herein, such person's name, age, principal occupation(s)
during the past five years, the year he/she first became a director and the
number of shares of the Company's Common Stock beneficially owned as of April
9, 1997. Ownership is direct unless otherwise specified.
5
UP FOR ELECTION
YEAR AMOUNT
FIRST AND PER
ELECTED OR NATURE OF CENT
PRINCIPAL APPOINTED TERM TO BENEFICIAL OF
NAME AGE (1) OCCUPATION (2) DIRECTOR (4) EXPIRE (4) OWNERSHIP(3) CLASS
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Everett Frost, 54 President of Eastern New 1992 2000 600 0.0%
Ph.D. Mexico University,
Portales. New Mexico
since July 1991, and has
been associated with the
University as an
administrator and/or
professor since 1970.
Charles 60 President and majority 1985 2000 9,430 0.8%
Guthals stockholder of Guthals Co.
Inc., a Clovis, New Mexico
nursery and landscaping
company.
Cornelius 56 Director, Principal & CEO, 1997 2000 10,000 0.8%
Higgins, Applied Research
Ph.D. Associates, Inc.,
Albuquerque, New
Mexico, a national
engineering firm, since
1979.
David 67 Healthcare Consultant, 1997 2000 20,000(10) 1.7%
Ottensmeyer, from January 1996;
MD President & CEO, The
Lovelace Institutes,
Albuquerque, New
Mexico, a non-profit
medical research institute,
July 1991 to December
1995; Director, Exogen.
Allan M. 56 President & CEO, 1997 1999 4,762(6) 0.4%
Moorhead Mechanical
Representatives, Inc.,
Albuquerque, New
Mexico, a manufacturing
representative of heating,
ventilation and air
conditioning equipment
since 1972.
6
YEAR AMOUNT
FIRST AND PER
ELECTED OR NATURE OF CENT
PRINCIPAL APPOINTED TERM TO BENEFICIAL OF
NAME AGE (1) OCCUPATION (2) DIRECTOR (4) EXPIRE (4) OWNERSHIP(3) CLASS
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James A. 66 Investments; Retired 1997 1999 10,000 0.8%
Clark President & CEO, First
Interstate Bank of
Albuquerque, New
Mexico, 1985-1991;
Director, Bowlins Outdoor
Advertising and Travel
Centers, Inc.; Director Lea
County State Bank, Hobbs,
New Mexico.
7
CONTINUING IN OFFICE
YEAR AMOUNT
FIRST AND PER
ELECTED OR NATURE OF CENT
PRINCIPAL APPOINTED TERM TO BENEFICIAL OF
NAME AGE (1) OCCUPATION (2) DIRECTOR (4) EXPIRE (4) OWNERSHIP(3) CLASS
- ------------------------------------------------------------------------------------------------------------
Norman R. 54 Chairman and Chief 1996 1999 42,060(9) 3.5%
Corzine Executive Officer of the
Company since 1996;
Strategic Planning Officer
for FirstBank since 1996;
Financial Consultant with
Merrill Lynch, 1993-
1995; Executive Vice
President, Capitol
Securities Group, Inc.,
1991-1992.
Robert Chad 47 President of Lydick 1987 1999 60,578(7) 5.1%
Lydick Engineers and Surveyors,
Inc., Clovis, New Mexico;
Chairman of FirstBank
since 1993.
Ken Huey, Jr. 52 President of the Company 1991 1998 29,064(9) 2.4%
since 1996; President and
Chief Executive Officer of
FirstBank since October,
1991.
Carl Deaton 72 Retired manager and 1979 1998 28,569(5) 2.4%
majority stockholder of
C.B.S. Auto Recyclers
and former owner of
Clovis Body Shop, Inc.,
located in Clovis, New
Mexico.
Thomas W. 49 President of Tucumcari 1994 1998 8,234(8) 0.7%
Martin, III Springwater & Seed Co.,
Inc., since 1969 - DBA
Taco Box of Clovis and
Portales, New Mexico.
(1) As of December 31, 1996.
(2) Nominees and directors have held these vocations or positions for at
least five years, unless otherwise noted.
(3) Unless otherwise noted, all shares are owned directly by the named
individuals or by their spouses and minor children, over which shares
the named individuals effectively exercise sole or shared voting
and/or investment power.
(4) Assuming election or reelection at the meeting.
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(5) Mr. Deaton has 21,060 shares held in the Deaton Family Trust, as to
which Mr. Deaton shares voting and investment power with his spouse
and four children. This also includes shared voting and investment
power that Mr. Deaton may have over 7,509 shares owned by his
brother, sister, first son and daughter-in-law, daughter,
granddaughter and son-in-law and daughter and granddaughter.
(6) The shares shown for Mr. Moorhead are held in the Moorhead Family
Trust.
(7) Mr. Lydick has shared voting and dispositive powers over all of these
shares with his spouse and/or his father.
(8) Includes 4,234 shares owned by Tucumcari Springwater & Seed Co. Inc.,
which is controlled by Mr. Martin.
(9) Shares of common stock subject to option currently exercisable, or
exercisable within sixty (60) days, are deemed outstanding for
computing the percentage of ownership of the person holding the
options, but not deemed outstanding for computing the percentage of
ownership of any other person. The number of shares shown for Mr.
Corzine and Mr. Huey include 5,000 shares and 5,000 shares,
respectively, under option grants.
(10) The shares shown for Dr. Ottensmeyer are held in a family trust.
9
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors conducts its business through meetings of the Board
and through its committees. The Bank is the predecessor to the Company, which
became a unitary thrift holding company for the Bank on October 21, 1996,
following shareholder and regulatory approvals. References herein to matters
occurring prior to October 21, 1996, such as Board meetings, relate to the
Bank, while matters occurring on and after October 21, 1996 relate to the
Company as holding company for the Bank. During the year ending December 31,
1996, the Board of Directors (and, for the purposes hereof, the Board of
Directors of the Bank prior to October 21, 1996) held ten regular monthly
meetings and four special called Board meetings. All directors attended more
than 75 % of the total number of these monthly and special Board meetings and
committee meetings of the Board on which they served, except Dr. Everett Frost.
The Executive Committee is currently composed of Norm Corzine, Ken Huey,
Jr., Robert Chad Lydick and Everett Frost. This committee is empowered to
exercise the authority of the Board of Directors when the Board is not in
session. During the year ending December 31, 1996, the Executive Committee of
the Bank held nine meetings, and the Executive Committee of the Company held no
meetings.
The Audit Committee, presently composed of Charles Guthals, Carl Deaton
and Tom Martin, is responsible for the review and evaluation of the Company's
internal controls and accounting procedures and reviews the Company's audit
reports with the Company's external independent auditors. During the year
ending December 31, 1996, the Audit Committee of the Bank met two times, and
the Audit Committee of the Company held no meetings.
Ballots bearing the names of all persons nominated by the Nominating
Committee and by stockholders shall be provided for use at the meeting. Under
the Company's Bylaws, the Board of Directors acts as the Nominating Committee.
The Board of Directors met one time in its capacity as the Nominating Committee
during the year ending December 31, 1996. The Nominating Committee does not
consider nominees recommended by stockholders. Article II, Section 13 of the
Company's Bylaws provides procedures for nomination of directors by the
stockholders. The Bylaws provide that no nomination for director, except those
made by the Nominating Committee, shall be voted upon at an annual meeting of
stockholders unless other nominations by stockholders are made in writing and
delivered to the Corporate Secretary of the Company at least five days prior to
the date of the annual meeting. Upon delivery, such nominations shall be posted
in a conspicuous place in each office of the Company. However, if the
Nominating Committee shall fail or refuse to act at least 20 days prior to an
annual meeting, nominations for director may be made at the annual meeting by
any stockholder entitled to vote and shall be voted upon. The election of any
director other than those now serving will require the approval of the OTS.
The Compensation Committee is composed of Norm Corzine, Ken Huey, Jr.,
Robert Chad Lydick and Charles Guthals. This committee is responsible for
reviewing salary administration. Actions taken or recommended by the committee
are subsequently submitted to the Board of
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Directors for ratification. During the year ending December 31, 1996, the
Compensation Committee held no meetings.
DIRECTORS' COMPENSATION
The Company's predecessor registrant, the Bank, paid compensation of
$300 per month to each director of the Bank, except Ken Huey, Jr., with an
additional $250 paid to each director, except Ken Huey, Jr., for attendance
at a regular monthly Board meeting. The Company has paid no compensation to
Company directors. Aggregate payments, for all directors, made pursuant to
this policy in 1996 totaled $37,100. Ken Huey, Jr. is the only director of
the Bank employed by the Bank, and has not received any director's fees since
becoming a director of the Bank in 1991.
The Board of Directors of the Company is proposing, for approval by the
shareholders, the Non-Employee Director Retainer Plan, which is described
elsewhere in this Proxy Statement. The Board anticipates that non-employee
directors would receive $500 per meeting as director meeting fees, which could
be taken in part or in whole in common stock of the Company, as described
elsewhere herein. Mr. Corzine and Mr. Huey, as employees of the Company, would
not receive director meeting fees or stock under the Non-Employee Director
Retainer Plan.
EXECUTIVE OFFICERS
NORMAN CORZINE, 54, has been employed by the Company as Chairman and Chief
Executive Officer since October 1996. He has also served as Strategic Planning
Officer of the Bank since 1996. From 1993 to 1995, he served as Financial
Consultant with Merrill Lynch, and from 1991-1992 was Executive Vice President
of Capitol Securities Group, Inc.
KEN HUEY, JR., 51, has been employed by the Bank since October 1991 as
President and Chief Executive Officer. Mr. Huey has served as President of the
Company since October 1996. He also serves on the Bank's Board of Directors.
From 1986 until 1991, he was a Vice President for First National Bank in
Clovis, working primarily in Commercial Loans and Regulatory Compliance. From
1976 to 1986, he served as a Vice President and Loan/Compliance Officer for
Western Bank of Clovis, New Mexico.
EXECUTIVE COMPENSATION
The following table sets forth information regarding compensation paid by
the Company (and the Bank as predecessor registrant) to the Company's executive
officers for services rendered during the three fiscal years ending December
31, 1996.
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SUMMARY COMPENSATION TABLE
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Long Term
Compensation
Annual Compensation Awards
- --------------------------------------------------------------------------------------------
Name and
Principal Position
(as of December Other Annual Securities All Other
31, 1996) Bonus ($) Compensation Underlying Compensation
Year Salary ($) (3) ($)(2) Options (#) ($)
- ---------------------------------------------------------------------------------------------
Norm Corzine (1) 1996 $90,938 0 $928 5,000 0
Chairman and
Chief Executive
Officer
- ---------------------------------------------------------------------------------------------
Ken Huey, Jr. 1996 $91,072 0 473 5,000 0
President 1995 91,694 6,000 1,397 17,000 0
1994 84,000 3,000 9,773(4) -0- 0
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(1) Mr. Corzine became an executive officer in 1996.
(2) The Bank provides Mr. Corzine and Mr. Huey with automobiles for both
business and personal use, and Mr. Corzine's and Mr. Huey's
allowances for the personal use of that automobile during 1996 were
$928 and $473, respectively. A similar allowance was provided to Mr.
Huey by the Bank in 1995 and 1994. However. the aggregate amount of
all perquisites and other personal benefits, including personal use
of the automobile, is less than either $50,000 or 10% of each
executive officer's total salary and bonus as specified above.
(3) Bonus based on Bank's year-end 1994 and 1993 profits and performance,
respectively.
(4) Includes $9,384 reimbursement for expenses paid by Mr. Huey in
connection with the Stockholder Derivative Lawsuit described in the
"Litigation" section of this Proxy Statement in which Mr. Huey has
received a summary judgment in his favor releasing him from the
lawsuit, pursuant to indemnification requirements.
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The following table provides information regarding stock options granted to
the Company's executive officers during fiscal year 1996. No Stock
Appreciation Rights ("SARs") were granted during fiscal year 1996.
OPTION GRANTS IN LAST FISCAL YEAR
- --------------------------------------------------------------------------------
INDIVIDUAL GRANTS
- --------------------------------------------------------------------------------
Name Number of % of Total Exercise or Base Expiration
Securities Options Granted Price ($/Sh) Date
Underlying to Employees in
Options Granted Fiscal Year
(#)
- --------------------------------------------------------------------------------
Norm Corzine 5,000 50% $5.50 12/31/98
- --------------------------------------------------------------------------------
Ken Huey, Jr. 5,000 50% 5.50 12/31/98
- --------------------------------------------------------------------------------
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The following table provides information as to stock options exercised (if
any) by the Company's executive officers during fiscal year ended December 31,
1996 and the value of the options held by the executive officers on December 31,
1996.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END
OPTION VALUES
- ----------------------------------------------------------------------------------------------
Number of Securities
Underlying Unexercised Value of Unexercised In-the-
Options at FY-End (#) Money Options at FY-End ($)(1)
- ----------------------------------------------------------------------------------------------
Shares Value
Acquired on Realized Exercisable Unexercisable Exercisable Unexercisable
Name Exercise (#) ($) (#) (#) ($) ($)
- ----------------------------------------------------------------------------------------------
Norm Corzine 17,000 $4,250 5,000 0 0 0
- ----------------------------------------------------------------------------------------------
Ken Huey, Jr. 17,000 $4,250 5,000 0 0 0
- ----------------------------------------------------------------------------------------------
(1) Represents the aggregate market value (market price of the common
stock less the exercise price) of the options granted based upon the
exercise price of the options ($5.50 per share) and the last trade of
$5.50 per share of the common stock as reported on the NASDAQ System
on December 26, 1996.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT
AND CHANGE-IN-CONTROL ARRANGEMENTS
Effective December 1, 1995, Kenneth J. Huey, Jr. entered into a two-year
employment agreement to continue as President and Chief Executive Officer of
the Bank. The Bank may terminate the agreement at any time with or without
cause. In the event the officer is terminated without cause, the agreement
provides that the terminated officer will receive compensation equal to said
officer's salary and employee benefits for the remainder of the term of the
agreement. The total compensation upon departure, for any reason, will not
exceed three times the officer's average annual compensation, based on the
five most recent taxable years. However, in the case of termination for
cause, the Bank will only pay accrued salary and other vested benefits due
said officer as of the date of termination. The agreement provided for the
granting of stock options, which are included in the "Executive Compensation"
section of this Proxy Statement.
Norm Corzine also entered into a two-year employment agreement as Vice
President and Strategic Planning Officer with the Bank through January 1,
1998. The terms of such agreement are similar to those described above for
the agreement with Mr. Huey.
TRANSACTIONS WITH THE COMPANY AND THE BANK
There have been no transactions in excess of $60,000 between the Company
or the Bank and the Company's executive officers, directors, nominees for
director, and 5% stockholders and their respective immediate family members,
which originated during the last two years. The Bank
14
has loans outstanding to certain of the executive officers, directors,
nominees for director and 5% stockholders which were originated more than two
years ago, all of which have terms in accordance with applicable regulations
and the Bank's normal lending policies and none of which are in default.
All loans made by the Bank to directors, officers, employees, and related
parties of the Bank and its subsidiaries are made in accordance with Regulation
"O" promulgated by the Federal Reserve Bank and the Bank's normal lending
policies.
In addition to the foregoing, the Bank services certain loans involving
various of its executive officers, directors, nominees for director, and 5%
stockholders, and their respective immediate family members, for which the Bank
receives a servicing fee. However, the Bank is not a party to such loans, but
is merely the servicing agent for the holder of the loans.
LITIGATION
On February 1, 1996, an Order of Dismissal was entered by the court with
respect to a certain derivative lawsuit ("Derivative Lawsuit") which had been
filed on May 19, 1994 and amended on November 2, 1994. The Derivative Lawsuit
was filed by two stockholders, one of whom was a former director of the Bank,
alleging a number of intentional and negligent acts and omissions in the
management of the Bank which allegedly resulted in damages and losses suffered
by the Bank. The court dismissed, with prejudice, all claims against all
defendants (including Mr. Guthals, who is standing for re-election), except a
former president, who was also chief executive officer and a director (the
"Former President") of the Bank. A dismissal with prejudice means that the
charges cannot be refiled. The court also ordered the plaintiffs to pay
reasonable expenses, including attorneys' fees, to one of the Bank's former
independent auditors. A notice of appeal was filed by the plaintiff. The Bank
cannot currently predict the outcome of the appeal.
If final judgment in their favor is received in the Derivative Lawsuit,
certain of the current and former director defendants may make demand on the
Bank for indemnification of their legal expenses pursuant to OTS regulations.
The disinterested members of the Bank's Board of Directors must approve said
indemnification and give 60 days notice to the OTS of the Bank's intention to
make such indemnification. No such indemnification shall be made if the OTS
advises the Bank in writing, within the 60 day notice period, of its objection
thereto. No demand for indemnification has been made by the remaining
defendants.
With respect to the Former President, the court dismissed the claims in
the Derivative Lawsuit without prejudice in order to allow the Bank to pursue
such claims in Federal Court. In May 1995, the Bank filed a lawsuit against
the Former President in the United States District Court for the District of
New Mexico. In the lawsuit, the Bank asserts that the defendant engaged in
fraudulent conduct and breached his duties of loyalty and care to the Bank,
all of which resulted in losses and damages to the Bank. The Bank is seeking
recovery of damages from the defendant in excess of $2.8 million, plus
interest and punitive damages. Settlement discussions are currently ongoing
between the parties.
15
PROPOSAL 2 - AMENDMENT OF THE COMPANY'S CERTIFICATE OF INCORPORATION TO
ELIMINATE DIRECTORS' LIABILITY UNDER CERTAIN CIRCUMSTANCES
Directors of corporations may be subject to substantial personal liability
for acts or omissions in their capacities as directors as well as to
significant expenses in defending lawsuits related to their conduct as
directors. Although Delaware law, certain provisions of the Company's
Certificate of Incorporation and Bylaws, and certain indemnification agreements
provide mechanisms intended to limit the liability exposure of directors,
including the purchase of directors' and officers' insurance, the proliferation
of litigation involving the personal liability of directors coupled with the
significantly increased costs and reduced coverage of directors' and officers'
insurance has had an adverse effect on the ability of corporations to attract
and retain well-qualified directors. The proposed amendment, discussed below,
to the Company's Certificate of Incorporation would eliminate directors'
liability in certain circumstances and thereby enable the Company to continue
to attract and retain such qualified directors.
Under Delaware law the business and affairs of a corporation are managed
by or under the direction of a board of directors. The directors owe to the
corporation and its stockholders fundamental duties of loyalty and care. The
duty of care requires that directors exercise informed business judgment in
discharging their duties to the corporation and its stockholders. To this end,
directors must be reasonably informed as to material information concerning the
corporation's business and affairs and must act with requisite care in
discharging their duties. The duty of loyalty requires that, in making a
business decision, the directors must act in good faith and in the honest
belief that any action taken is in the corporation's best interests.
Although directors may be held personally liable for the breach of these
duties, the General Corporation Law of Delaware (the "Delaware Code") permits
corporations under certain circumstances to indemnify directors against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement incurred by a director in connection with any action, suit, or
proceeding to which he or she has been or is threatened to be made a party by
reason of the fact that he or she is or was a director. The Delaware Code also
requires corporations to indemnify directors against expenses incurred in the
successful defense of such an action, suit, or proceeding. The Company has
entered into agreements with the directors providing for the indemnification of
directors to the full extent permitted by applicable law. The Company's Bylaws
similarly provide for such indemnification. In addition, the Company's
Certificate of Incorporation permits the Company to purchase insurance on
behalf of directors against any liability or expense asserted against a
director in his or her capacity as a director regardless of whether the Company
would have the power to indemnify him or her against such liability or expense.
The Company purchases and maintains policies of insurance for its directors and
officers. Such insurance benefits the Company by affording protection against
liabilities to which it may otherwise be exposed.
The Board of Directors believes that the high cost and uncertainty of
maintaining adequate directors' and officers' insurance may have an adverse
effect on the ability of many public corporations to attract and retain
qualified persons to serve as directors. The Company to date has not
experienced any particular difficulty in attracting or retaining directors.
16
In response to concerns about the general market for directors'
liability insurance, the Delaware legislature amended the Delaware Code
permitting corporations to provide additional protection for directors
against personal liability. Section 102(b)(7) of the Delaware Code, which
became effective July 1, 1986, enables corporations to adopt amendments to
their certificates of incorporation eliminating or limiting the liability of
directors to the corporation or its stockholders for monetary damages for
breach of fiduciary duties as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for payment of a
dividend or approval of a stock repurchase in violation of Section 174 of the
Delaware Code, or (iv) for any transaction from which the director derived an
improper personal benefit. Section 102(b)(7) has no effect on the
availability of equitable remedies, such as an injunction or rescission, for
breach of fiduciary duties.
At its meeting on March 28, 1997, the Company's Board of Directors adopted
a resolution proposing an amendment, subject to stockholders' approval, of the
Company's Certificate of Incorporation to add a new Article Thirteenth thereto
which would eliminate directors' liability to the full extent permitted by
Section 102(b)(7). The proposed amendment, if approved, will read as follows:
"THIRTEENTH: A director shall not be personally liable for
monetary damages to the Corporation or its stockholders for
breach of fiduciary duty as a director except (a) for any
breach of the director's duty of loyalty to the Corporation
or its stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing
violation of law, (c) under section 174 of the General
Corporation Law of the State of Delaware or any successor
provision, or (d) for any transaction from which the
director derived an improper personal benefit."
The amendment would thus eliminate a director's personal liability to
the Company and its stockholders for monetary damages for breach of such
director's duty of care, including grossly negligent business decisions
involving takeover proposals for the Company. If the proposed amendment is
adopted, stockholders of the Company will be precluded from obtaining
monetary damages against directors of the Company to redress a direct injury
to stockholders resulting from the directors' breach of their duty of care.
Judgments for monetary damages in actions brought by the Company, or by its
stockholders on behalf of the Company, for direct injury to the Company
resulting from the directors' breach of their duty of care will be similarly
precluded. The Company's stockholders would, however, still be entitled to
bring an action seeking to enjoin a director or directors from breaching his
or their duty of care. Directors will also continue to be liable for damages
for breach of their duty of loyalty to the Company, as well as in the other
three circumstances excepted in Section 102(b)(7) of the Delaware Code as
outlined above.
The Board of Directors believes that adoption of the proposed amendment
to the Certificate of Incorporation will benefit the Company and its
stockholders by enabling
17
the Company to continue to attract and retain well-qualified directors.
Further, although there can be no assurance of a reduction in directors' and
officers' liability insurance rates or an increase in the availability of
coverage as a result of the proposed amendment, the Board of Directors
believes that its adoption may have a favorable impact on the availability
and cost of such insurance. Finally, if such insurance should become
unavailable or prohibitively expensive, the proposed amendment would provide
protection not otherwise available. Of course, by the very nature of the
proposed amendment, the directors have a personal interest in its adoption,
at the potential expense of stockholders of the Company.
If the proposed amendment is adopted, directors of the Company will be
protected against liability as specified in Section 102(b)(7) only for acts or
omissions after the effective date of the amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL OF PROPOSAL 2.
18
PROPOSAL 3 - AMENDMENT OF THE COMPANY'S CERTIFICATE OF
INCORPORATION TO ELIMINATE CERTAIN RESTRICTIONS ON THE ISSUANCE
OF STOCK TO DIRECTORS, OFFICERS OR CONTROLLING PERSONS
The Certificate of Incorporation of the Company contains a restriction on
the issuance of stock to officers, directors, or controlling persons of the
Company under certain circumstances. Section D of Article Fourth currently
provides as follows:
D. No shares of capital stock (including shares issuable
upon conversion, exchange or exercise of other securities)
shall be issued directly or indirectly, to officers,
directors, or controlling persons of the Corporation other
than as part of a general public offering or as qualifying
shares to a director unless the issuance or the plan under
which they would be issued has been approved by a majority
of the total votes eligible to be cast at a legal meeting.
The Board of Directors proposes to amend the Certificate of Incorporation to
delete Section D of Article Fourth.
The restriction in Section D of Article Fourth of the Company's
Certificate of Incorporation was included in the 1986 Federal Stock Charter of
First Savings Bank, F.S.B., the predecessor of the Company and now a wholly-
owned subsidiary of the Company. The provision was included in the Company's
Certificate of Incorporation in order that the Certificate of Incorporation
would be as similar as possible to the Federal Bank Charter at the time of the
formation of the Company as a unitary thrift holding company for the Bank in
October 1996.
The Company's Board of Directors is of the opinion that such restriction
should be eliminated as an unusual restriction for a public company, as well as
an unnecessary restriction given the public listing and trading of the Common
Stock of the Company. Eliminating the restriction would make it easier for the
Company to issue shares of capital stock to its officers, directors or
controlling persons without obtaining future approval of stockholders. However
it would not eliminate any other requirements relating to the issuance of such
shares under Delaware law nor would the amendment eliminate any duties of such
persons with respect to self-dealing or their fiduciary duty of loyalty to the
Company.
Particularly given the need for capital for the Bank as required by the
OTS, the Board of Directors does not believe it to be necessary or advisable to
so restrict the issuance of capital stock which might otherwise be used to
raise capital for the Company and the Bank.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL OF PROPOSAL 3.
19
PROPOSAL 4 - AMENDMENT OF THE CERTIFICATE OF INCORPORATION TO ADD A "FAIR
PRICE" PROVISION.
The Board of Directors has proposed and declared advisable, and is
recommending to the stockholders, approval of an amendment to the Company's
Certificate of Incorporation to add a "fair price" provision (the "Fair Price
Amendment"). The Fair Price Amendment would require that certain minimum price
and procedural requirements, intended for the protection of the Company and its
stockholders as a whole, be observed by any party which acquires more than ten
percent of the Company's common stock and then seeks to accomplish a merger or
other business combination or transaction which would eliminate or could
significantly change the interests of the remaining stockholders, unless
approved by a majority of Disinterested Directors (as defined below). If the
specified requirements of the Fair Price Amendment are not observed by such an
acquiring party, an increased stockholder vote would be required as a condition
for a subsequent business combination. Adoption of the Fair Price Amendment may
significantly affect a third party's interest in acquiring a substantial or
controlling position in shares of common stock of the Company, as well as
enhance the ability of the Board of Directors to take action in the light of
such an acquisition by a third party. Accordingly, stockholders should read
carefully the following description of this proposed amendment, its purpose and
effects, and Exhibit "A" hereto, which sets forth the full text of the Fair
Price Amendment, before voting on Proposal 4.
The Board of Directors has observed that it has become relatively common
in corporate takeover practice for a third party to pay cash to acquire a
substantial or controlling equity interest in a corporation and then to acquire
the remaining equity interest by paying the balance of the stockholders a price
for their shares that is lower than the price paid to acquire control and/or is
in a less desirable form of consideration, such as securities of the acquiring
party that do not have an established trading market at the time of issue.
In these two-tier acquisitions, arbitrageurs and professional investors
may be in a better position to take advantage of a more lucrative first-step
acquisition than many long-term stockholders, who may have to accept a lower
price in the second step. In two-tier transactions, even stockholders who
tender their shares in response to a higher first-step cash tender offer may
not be assured that all of their shares will be accepted, since there are often
proration provisions limiting the number of shares which the acquiring party is
obliged to accept at the higher price. As a result, many stockholders may
receive only the average price offered by the acquiring party for all of the
shares of the corporation. In many cases this average price might not be high
enough to have caused a majority of a corporation's stockholders to tender
their shares if the acquiring party's offer had been to purchase all of the
corporation's shares for that average price per share.
In addition, while federal securities laws and regulations applicable to
business combinations govern the disclosure required to be made to stockholders
in order to consummate such a transaction, they do not assure stockholders that
the terms of the business combination will be fair from a financial point of
view or that minority stockholders effectively can prevent the consummation of
a business combination that is opposed by its Board of Directors. Although the
Securities and Exchange Commission amended its tender offer rules in 1982 to
require the pro
20
rata acceptance of all shares tendered prior to the expiration of a tender
offer, the Commission recognized that this amendment is not intended to deal
with two-tier pricing.
The Board considers that such two-tier pricing tactics are unfair to a
corporation's stockholders. By their very nature, such tactics tend (and are
often designed) to cause concern on the part of stockholders that, if they do
not act promptly, they risk either being relegated to the status of minority
stockholders in a controlled corporation or being forced to accept a lower
price for all of their shares. Thus, such tactics may pressure stockholders
into selling as many of their shares as possible either to the acquiring
party or in the open market without having the opportunity to make a
considered investment choice between remaining a stockholder of the
corporation or disposing of their shares. Moreover, their very actions in
selling their shares might facilitate an acquiring party's acquisition of a
controlling interest, at which point an acquiring party may be able to force
the exchange of the remaining shares in a business combination for a lower
price.
The Fair Price Amendment is designed to deter an acquiring party from
utilizing two-tier pricing and similar inequitable tactics in an attempt to
take over the Company. However, the amendment is not designed to prevent or
deter all tender offers for shares of the Company. It does not affect an
offer for all shares at the same price or preclude offers at different
prices. Nor does the amendment preclude an acquiring party from making a
tender offer for some of the shares of the Company without proposing a
Business Combination (as defined below). Except for the restrictions on
Business Combinations, the amendment will not prevent a holder of a
controlling interest in the Company's common stock from exercising control
over or increasing its interest in the Company.
It should be noted that while the Fair Price Amendment is designed to
help assure fair treatment of all stockholders in the event of a takeover
attempt, it is not its purpose to provide assurance that stockholders will
receive a premium price for their shares in a takeover attempt. Accordingly,
the Board is of the view that the adoption of the Fair Price Amendment would
not preclude the Board from opposing any future takeover proposal that it
believes not to be in the best interests of the Company and its stockholders,
whether or not such a proposal satisfies the minimum price criteria and
procedural requirements of the amendment.
The Board of Directors considers that adoption of the Fair Price
Amendment is advisable notwithstanding protections that may be afforded by
regulatory requirements of the OTS.
The provisions of the Fair Price Amendment, if approved, would be in
addition to certain anti-takeover provisions of the Delaware Code. Section
203 of the Delaware Code is intended to discourage certain takeover practices
by impeding the ability of a hostile acquiror to engage in certain
transactions with the target company. In general, Section 203 provides that
a "Person" (as defined therein) who owns 15% or more of the outstanding
voting stock of a Delaware corporation (a "Section 203 Interested
Stockholder") may not consummate a merger or other business combination
transaction with such corporation at any time during the three-year period
following the date such "Person" became a Section 203 Interested Stockholder.
The term "business combination" is defined broadly to cover a wide range of
corporate transactions
21
including mergers, sales of assets, issuances of stock,
transactions with subsidiaries and the receipt of disproportionate financial
benefits. The statute exempts the following transactions from the
requirements of Section 203: (i) any business combination if, prior to the
date a person became a Section 203 Interested Stockholder, the Board of
Directors approved either the business combination or the transaction which
resulted in the stockholder becoming a Section 203 Interested Stockholder;
(ii) any business combination involving a person who acquired at least 85% of
the outstanding voting stock in the transaction in which he or she became a
Section 203 Interested Stockholder, with the number of shares outstanding
calculated without regard to those shares owned by the corporation's
directors who are also officers and by certain employee stock plans; (iii)
any business combination with a Section 203 Interested Stockholder that is
approved by the Board of Directors and by a two-thirds vote of the
outstanding voting stock not owned by the Section 203 Interested Stockholder;
and (iv) certain business combinations that are proposed after the
corporation had received other acquisition proposals and which are approved
or not opposed by a majority of certain continuing members of the Board of
Directors. A corporation may exempt itself from the requirement of the
statute by adopting an amendment to its certificate of incorporation or
bylaws electing not to be governed by Section 203. At the present time, the
Board of Directors does not intend to propose any such amendment.
SPECIAL VOTE REQUIRED FOR CERTAIN COMBINATIONS. At present, mergers,
consolidations, sales of substantially all of the assets of the Company, the
adoption of a plan of liquidation or dissolution of the Company, and
reclassifications of securities and recapitalizations of the Company
involving amendments to its Certificate of Incorporation must be approved by
the vote of the holders of a majority of shares of common stock. Certain
other transactions, such as sales of less than substantially all of the
assets of the Company, certain mergers involving wholly-owned subsidiaries of
the Company, and recapitalizations and reclassifications not involving any
amendments to the Certificate of Incorporation, do not require stockholder
approval. If adopted, the Fair Price Amendment would require the affirmative
vote of the holders of at least 80 percent of the outstanding common stock,
given at any annual meeting of stockholders or at any special meeting called
for that purpose, to approve a Business Combination involving such Interested
Stockholder, except in cases in which either certain price criteria and
procedural requirements are satisfied or the transaction is approved by a
majority of the Disinterested Directors. In the event the price criteria and
procedural requirements were to be met or the requisite approval of the Board
were to be given with respect to a particular Business Combination, the
normal requirements of Delaware law and other provisions of the Certificate
of Incorporation would apply, and, accordingly, the affirmative vote of the
holders of only a majority of the outstanding shares of common stock would be
required, or, for certain transactions, as noted above, no stockholder vote
would be necessary. Thus, depending upon the circumstances, the Fair Price
Amendment would require such special stockholder vote for a Business
Combination in cases in which either a majority vote or no vote is presently
required under state law and the Company's Certificate of Incorporation.
An "Interested Stockholder" is defined in the Fair Price Amendment as any
person (other than the Company or any Subsidiary (which for purposes of the
definition of "Interested Stockholder" means a company of which a majority of
each class of equity security is owned, directly or indirectly, by the Company)
who is (i) the beneficial owner, directly or indirectly, of
22
more than ten percent of the voting power of the then outstanding common
stock; or (ii) an Affiliate (as defined in the Fair Price Amendment) of the
Company and who, at any time within the two-year period immediately prior to
the date in question, was the beneficial owner, directly or indirectly, of
more than ten percent of the voting power of the then outstanding common
stock; or (iii) an assignee of or other successor to any shares of common
stock in a transaction or series of transactions not involving a public
offering that were at any time within the two-year period immediately prior
to the date in question beneficially owned by an Interested Stockholder. A
person shall be deemed a "beneficial owner" of any common stock if such
person or any of its Affiliates or Associates (as defined in the Fair Price
Amendment) beneficially owns, directly or indirectly, or has the right to
acquire or to vote such stock. At present, the Company is not aware of the
existence of any stockholder or group of stockholders that would be an
Interested Stockholder.
A "Business Combination" includes the following transactions: (a) any
merger or consolidation of the Company or any Subsidiary (which for purposes
of the definition of "Business Combination" means a corporation of which a
majority of any class of equity securities is owned, directly or indirectly,
by the Company) with an Interested Stockholder or with any other corporation
which is, or after such merger or consolidation would be, an Affiliate of an
Interested Stockholder; (b) any sale, lease, exchange, mortgage, pledge,
transfer, or other disposition to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the Company or any
Subsidiary having an aggregate fair market value (calculated as provided in
the Fair Price Amendment) equaling or exceeding 25% or more of the combined
assets of the Company and its Subsidiaries; (c) the issuance or transfer by
the Company or any Subsidiary of any securities of the Company or any
Subsidiary to any Interested Stockholder or any Affiliate of any Interested
Stockholder having an aggregate fair market value (so calculated) equaling or
exceeding 25% or more of the combined assets of the Company and its
Subsidiaries except pursuant to an employee benefit plan of the Company of
any Subsidiary; (d) the adoption of any plan or proposal for the liquidation
or dissolution of the Company proposed by or on behalf of any Interested
Stockholder or any Affiliate of any Interested Stockholder; or (e) any
reclassification of securities (including any reverse stock split), or
recapitalization of the Company, or any merger or consolidation of the
Company with any of its Subsidiaries, or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of
the Company or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
provided, however, that no such transaction shall be deemed a
Disproportionate Transaction if the increase in the proportionate ownership
of the Interested Stockholder or Affiliate as a result of such transaction is
no greater than the increase experienced by the other stockholders generally.
A "Disinterested Director" is any member of the Board of Directors who
is unaffiliated with an Interested Stockholder and who was a member of the
Board prior to the date on which the Interested Stockholder became an
Interested Stockholder (the "Determination Date"), and any successor of a
Disinterested Director who is unaffiliated with an Interested Stockholder and
is
23
recommended to succeed a Disinterested Director by a majority of the total
number of Disinterested Directors then on the Board.
EXCEPTIONS TO SPECIAL VOTE REQUIREMENTS. The special stockholder vote
described above would not be required (1) if the transaction has been
approved by a majority of the Disinterested Directors or (2) if all of the
minimum price criteria and procedural requirements described in paragraphs
(a) and (b) below are satisfied. The requirements of paragraphs (a) and (b)
do not apply to a transaction that does not involve any cash or other
consideration being received by the stockholders of the Corporation solely in
their capacity as stockholders of the Corporation.
(a) MINIMUM PRICE CRITERIA. In general, in a Business Combination
involving cash or other consideration being paid to holders of outstanding
common stock, the consideration would be required to be either in cash or in
the same form as the Interested Stockholder has previously paid for shares of
such stock. In addition, the fair market value of such consideration
(calculated as provided in the Fair Price Amendment) as of the date of the
consummation of the Business Combination (the "Consummation Date") would be
required to meet certain minimum price criteria described below.
In the case of payments to holders of the Company's common stock, the
aggregate amount of the cash and the fair market value (calculated as
provided in the Fair Price Amendment) as of the Consummation Date of
consideration other than cash per share to be received by such holders would
have to be at least equal to the higher of (i) the highest per share price
paid by the Interested Stockholder for any shares of common stock acquired by
it within the two years immediately prior to the first public announcement of
the terms of the proposed Business Combination (the "Announcement Date") or
in the transaction in which it became an Interested Stockholder, whichever is
higher, and (ii) the fair market value (so calculated) per share of common
stock on the Announcement Date or on the Determination Date, whichever is
higher, in each case appropriately adjusted for stock dividends, stock
splits, combinations of shares, and other similar events. In general, for the
purposes of the Fair Price Amendment, fair market value of the common stock
on the Announcement Date or Determination Date would be the highest closing
sale price during the 30-day period immediately preceding the date in
question.
The following example illustrates the operation of the minimum price
mechanism in a transaction in which the acquisition by an Interested
Stockholder of shares was by cash purchases in open market transactions:
(i) highest price paid per share within the two-year period
immediately prior to the Announcement Date ($6) or in the transaction in
which it became an Interested Stockholder ($5), whichever is higher: $6;
(ii) the fair market value (calculated as provided in the Fair Price
Amendment) on the Announcement Date ($5) or on the Determination Date
($4), whichever is higher: $5.
24
In this example, in order to comply with the amendment's minimum price
criteria, the Interested Stockholder would be required to pay to holders of
shares of common stock in the Business Combination at least $6 per share (the
higher of the two alternatives above).
In the case of payments to holders of shares of any other class of
voting stock, the fair market value per share of such payments would have to
be at least equal to the higher of (i) the highest per share price determined
with respect to such class in the same manner as described in clause (i) or
(ii) of the preceding paragraphs or (ii) the highest preferential amount per
share to which the holders of shares of such class are entitled in the event
of a voluntary or involuntary liquidation, dissolution, or winding up of the
Company.
Under the minimum price criteria, the fair market value (calculated as
provided in the Fair Price Amendment) of non-cash consideration to be
received by holders of shares of common stock in a Business Combination is to
be determined as of the Consummation Date. Where the definitive terms of such
non-cash consideration are established in advance of the Consummation Date,
intervening adverse developments, either in the economy or the market
generally or in the financial condition or business of the Interested
Stockholder, could result in a decline in the originally anticipated fair
market value of such consideration. As a result, a Business Combination which
had theretofore been considered as not requiring either the special
stockholder vote or approval by a majority of Disinterested Directors
(because it was expected to satisfy the minimum price criteria and it
satisfied the procedural requirements) could not be consummated because it
would not have received such vote or approval (even if it had received the
vote required by Delaware law or the Certificate of Incorporation, without
giving effect to the special vote provided for in the Fair Price Amendment)
under circumstances in which the minimum price criteria are applicable. Thus,
an Interested Stockholder who wishes to use non-cash consideration in a
Business Combination may not know with certainty at the time the Business
Combination is submitted to stockholders whether such consideration will meet
the minimum price criteria. However, an Interested Stockholder could avoid
such a situation by establishing, in advance, terms for the Business
Combination whereby the non-cash consideration was to be finalized by
reference to its fair market value on the Consummation Date. Such an
approach, which has been used in connection with mergers and similar
second-step transactions in the past, would help to assure that the
Interested Stockholder would bear the risk of a decline in the actual market
value of the offered consideration prior to the consummation of the Business
Combination.
If the proposed Business Combination does not involve any cash or other
property being received by any of the other stockholders, such as a sale of
assets or an issuance of the Company's securities to an Interested
Stockholder, then the price criteria discussed above would not apply and the
special vote of stockholders would be required unless the transaction were
approved by a majority of the Disinterested Directors.
(b) PROCEDURAL REQUIREMENTS. Under the Fair Price Amendment, in order
to avoid the special stockholder vote requirement, after an Interested
Stockholder becomes an Interested Stockholder it would have to comply with
the procedural requirements, as well as the minimum price criteria, unless
the Business Combination is approved by a majority of the Disinterested
Directors.
25
Under the Fair Price Amendment, the special stockholder vote would be
required (unless a majority of the Disinterested Directors approves the
Business Combination) if the Company, after the Interested Stockholder has
proposed a Business Combination and prior to the consummation of such
Business Combination, fails to increase the quarterly rate of dividends on
shares of common stock outstanding as necessary to reflect any
recapitalization, reorganization, or similar transaction which has the effect
of reducing the number of outstanding shares of common stock, or reduces the
quarterly rate of dividends paid on common stock (except as necessary to
reflect any subdivision of common stock), unless such failures or reduction
are approved by a majority of the Disinterested Directors. This provision is
designed to prevent an Interested Stockholder who controls a majority of the
Board of Directors (other than Disinterested Directors) from attempting to
depress the market price of the Company's shares prior to consummating a
Business Combination by reducing dividends thereon and thereby reducing the
consideration required to be paid pursuant to the minimum price provisions of
the Fair Price Amendment.
The Fair Price Amendment would also require the special stockholder vote
on a proposed Business Combination (unless a majority of the Disinterested
Directors approved the Business Combination) if the Interested Stockholder
acquired any additional shares of common stock directly from the Company or
otherwise, in any transaction subsequent to the time it proposes a Business
Combination. This provision is intended to prevent an Interested Stockholder
from purchasing additional shares of the common stock at prices that are
lower than those set by the minimum price criteria after it proposes a
Business Combination.
Under the Fair Price Amendment, in order to avoid the special
stockholder vote requirement, a proxy or information statement disclosing the
terms and conditions of a proposed Business Combination and complying with
the requirements of the proxy rules promulgated under the Securities Exchange
Act of 1934 would have to be mailed to all stockholders of the Company
entitled to vote thereon at least 30 days prior to the consummation of a
Business Combination, unless the Business Combination were approved by a
majority of the Disinterested Directors. This provision is intended to assure
that the Company's stockholders would be fully informed of the terms and
conditions of the proposed Business Combination even if the Interested
Stockholder were not otherwise legally required to disclose such information
to stockholders.
It should be noted that none of the minimum price criteria and
procedural requirements described above would apply in the case of a Business
Combination approved by a majority of the Disinterested Directors and that,
in the absence of such approval, all of such requirements would have to be
satisfied to avoid the special stockholder vote requirement.
SPECIAL VOTE REQUIRED TO AMEND OR REPEAL. The Fair Price Amendment would
provide that the affirmative vote of the holders of at least 80 percent of the
outstanding common stock, given at any annual meeting of stockholders or at any
special meeting called for that purpose, would be required to amend, alter,
change, or repeal, or adopt any provisions inconsistent with, the amendment;
provided, however, that any such amendment, alteration, change, repeal, or
adoption approved by a majority of the Disinterested Directors shall require
only such vote as is required by law, any other provision of the Certificate of
Incorporation, or the by-laws.
26
CONSIDERATIONS IN SUPPORT OF THE FAIR PRICE AMENDMENT
As previously discussed, a number of publicly held corporations have
been the subject of tender offers for, or other acquisitions of, substantial
positions in their shares. In many cases, such transactions have been
followed by proposed business combinations in which the tender offeror or
other purchaser has paid or proposed to pay a lower price or less desirable
form of consideration for the remaining outstanding shares than the price it
paid in acquiring its original interest. Federal securities laws and
regulations govern the disclosure required to be made to minority
stockholders in such transactions but do not assure fairness to stockholders
of the terms of a business combination. Moreover, the statutory right of the
remaining stockholders of a corporation to dissent in connection with certain
business combinations and receive the "fair value" of their shares in cash
may not in all cases be available or may involve significant expense, delay
or uncertainty to dissenting stockholders. In the case of many business
combinations, including reclassifications or recapitalizations of the
outstanding shares of any class of a corporation's stock, the statutory right
to dissent may not be available at all.
The Fair Price Amendment is intended, in part, to meet these gaps in
federal and Delaware law and to prevent certain of the potential inequities
of Business Combinations that involve two or more steps by requiring that in
order to complete a Business Combination that is not approved by a majority
of the Disinterested Directors, an Interested Stockholder must either assure
itself of obtaining the special stockholder vote or be prepared to meet the
minimum price criteria and procedural requirements. The Fair Price Amendment
is also designed to protect those stockholders who have not tendered or
otherwise sold their shares to a third party who is attempting to acquire
control by helping to assure that at least the same price and form of
consideration are paid to such stockholders in a Business Combination as were
paid to stockholders in the initial step of the acquisition. In the absence
of these changes, an Interested Stockholder who acquires control of the
Company could subsequently, by virtue of such control, force minority
stockholders to sell or exchange their shares at a price that may not reflect
any premium the Interested Stockholder may have paid in order to acquire its
interest. Such a price could be lower than the price paid by the Interested
Stockholder in acquiring control and could also be in a less desirable form
of consideration (e.g., equity or debt securities of the Interested
Stockholder instead of cash).
In many situations, the minimum price criteria and procedural
requirements would require that an Interested Stockholder pay stockholders a
higher price for their shares and/or structure the transaction differently
from what would be the case without the amendment. Accordingly, the Board of
Directors believes that, to the extent a Business Combination were involved
as part of a plan to acquire control of the Company, adoption of the Fair
Price Amendment would increase the likelihood that an Interested Stockholder
would negotiate directly with the Board. The Board believes that it is in a
better position than individual stockholders of the Company to negotiate
effectively on behalf of all stockholders in that the Board is likely to be
more knowledgeable than most individual stockholders in assessing the
business and prospects of the Company. Therefore, the Board is of the view
that negotiations between the Board and an Interested Stockholder
27
would increase the likelihood that stockholders in general would receive a
higher price for their shares than otherwise might be obtained.
Although some substantial acquisitions of a corporation's shares are
made without the objective of effecting a subsequent business combination, in
many cases a purchaser acquiring control desires to have the option to
consummate such a business combination. Assuming that to be the case, the
Fair Price Amendment would tend to deter a potential purchaser whose
objective is to seek control of the Company at a relatively cheap price,
since acquiring the remaining equity interest would not be assured unless the
minimum price criteria and procedural requirements were satisfied or a
majority of Disinterested Directors were to approve the transaction. Adoption
of the Fair Price Amendment should also help deter the accumulation of large
blocks of the Company's shares, which the Board believes to be potentially
disruptive to the stability of the Company's and its subsidiaries' vitally
important relationships with its customers and employees and which could
precipitate a change of control of the Company on terms unfavorable to the
Company's other stockholders.
CONSIDERATIONS AGAINST THE FAIR PRICE AMENDMENT
Tender offers or other non-open market acquisitions of stock are usually
made at prices above the prevailing market price of a corporation's stock. In
addition, acquisitions of stock by persons attempting to acquire control
through market purchases may cause the market price of the stock to reach
levels that are higher than might otherwise be the case. The presence of a
fair price provision may deter such purchases, particularly those of less
than all of a corporation's shares, and may therefore deprive holders of a
corporation's shares of an opportunity to sell their stock at a temporarily
higher market price. Because of the special requirements for stockholder
approval of any subsequent business combination and the possibility of having
to pay a higher price to other stockholders in such a business combination, a
fair price provision may make it more costly for a third party to acquire
control of a corporation. Thus, the Fair Price Amendment may decrease the
likelihood that a tender offer will be made for less than all of the
Company's common stock and, as a result, may adversely affect those
stockholders who would desire to participate in such a tender offer. It
should be noted that the provisions of the Fair Price Amendment would not
necessarily deter persons who might be willing to seek control by acquiring a
substantial portion of the Company's common stock when they have no intention
of acquiring the remaining shares.
In certain cases, the Fair Price Amendment's minimum price provisions,
while providing objective pricing criteria, could be arbitrary and not
indicative of value. In addition, an Interested Stockholder may be unable, as
a practical matter, to comply with all of the procedural requirements. In
these circumstances, unless an Interested Stockholder were able to secure the
special stockholder vote on a proposed Business Combination, it would be
forced either to negotiate with the Board of Directors and on terms
acceptable to the Board or to abandon such proposed Business Combination.
Another effect of the Fair Price Amendment would be to give veto power
to the holders of a minority of common stock with respect to a proposed
Business Combination that is opposed by
28
a majority of Disinterested Directors but that a majority of stockholders may
believe to be desirable and beneficial. In addition, since only the
Disinterested Directors will have the authority to reduce to a simple
majority or eliminate the special stockholder vote required for a particular
Business Combination, the Fair Price Amendment may tend to insulate incumbent
directors against the possibility of removal in the event of a takeover
attempt. Conversely, if an Interested Stockholder has replaced all of the
directors who were in office on the date it became an Interested Stockholder
with nominees of its choice, there would be no Disinterested Directors and,
consequently, such special stockholder vote requirement would apply to any
Business Combination consummated subsequent to such replacement that did not
satisfy all of the minimum price criteria and procedural requirements of the
Fair Price Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL OF PROPOSAL 4.
29
PROPOSAL 5 - APPROVAL OF THE 1997 STOCK OPTION
AND INCENTIVE PLAN.
The Board of Directors has adopted the Access Anytime Bancorp, Inc. 1997
Stock Option and Incentive Plan (the "Plan"), subject to approval by the
Company's stockholders. Pursuant to the Plan, which is attached hereto as
Exhibit B, an aggregate of 180,000 shares have been reserved for future
issuance by the Company upon exercise of stock options to be granted from
time to time under the Plan. The following summary is qualified in its
entirety by reference to the specific provisions of the Plan.
The purpose of the Plan is to provide a means through which the
Company and its subsidiaries may attract and retain the best available
personnel as officers, directors and employees of the Company and its
subsidiaries and to provide a means whereby those individuals upon whom the
responsibilities of the successful administration and management of the
Company and its subsidiaries rest, and whose present and potential
contributions to the welfare of the Company and its subsidiaries are of
importance, can acquire and maintain stock ownership, thereby strengthening
their concern for the welfare of the Company and its subsidiaries and their
desire to remain in the Company's and its subsidiaries' employ. A further
purpose of the Plan is to provide such individuals with additional incentive
and reward opportunities designed to enhance the profitable growth of the
Company. Accordingly, the Plan provides for granting Incentive Stock
Options, options which do not constitute Incentive Stock Options, Stock
Appreciation Rights, or any combination of the foregoing, as is best suited
to the circumstances of the particular individual as provided herein.
The Plan authorizes the issuance of up to 180,000 shares of the
Company's Common Stock. Shares may be either authorized but unissued shares
or reacquired shares. Any shares subject to an award which lapses or is
terminated unexercised will again be available for issuance under the Plan.
No award or any right or interest therein is assignable or transferable
except by will or the laws of descent and distribution. Each award shall be
on such terms and conditions consistent with the Plan as the Committee
administering the Plan may determine.
Based on the last trade on NASDAQ on April 14, 1997, at the price of
$5.25, the aggregate value of the 180,000 shares of stock was $945,000.
The Plan is to be administered by the Stock Committee of the Board, none
of whose members is an employee of the Company.
The Plan shall be effective upon the date of its adoption by the Board
(the "Committee"), provided that the Plan is approved by the stockholders of
the Company within twelve months thereafter. No further Awards (as defined
in the Plan) may be granted under the Plan after the expiration of ten years
from the date of its adoption by the Board. The Plan shall remain in effect
until all Awards granted under the Plan have been satisfied or expired.
ADMINISTRATION
30
Subject to the provisions of the Plan, the Committee shall have sole
authority, in its discretion, to determine which employees shall receive an
Award, the time or times when such Award shall be made, whether an Incentive
Stock Option, Nonqualified Option or Stock Appreciation Right shall be
granted, and the number of shares of Stock which may be issued under each
Option or Stock Appreciation Right. In making such determinations, the
Committee may take into account the nature of the services rendered by the
respective employees, their present and potential contributions to the
employer's success and such other factors as the Committee in its discretion
shall deem relevant.
ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are
officers, directors or other key employees. The Company is not able at this
time to determine the number of eligible participants. An Award may be
granted on more than one occasion to the same person, and, subject to the
limitations set forth in the Plan, such Award may include an Incentive Stock
Option or a Nonqualified Stock Option, a Stock Appreciation Right or any
combination thereof.
STOCK OPTIONS
The term of each Option shall be as specified by the Committee at the
date of grant. An Option shall be exercisable in whole or in such
installments and at such times as determined by the Committee. No Incentive
Stock Option granted pursuant to this Plan shall be exercised by any Holder
(as defined in the Plan) while there is outstanding any other Incentive Stock
Option which was granted prior to the date of grant of such Incentive Stock
Option to such Holder, whether pursuant to the Plan or any other plan of the
Company.
No Incentive Stock Option may be granted to any director who is not an
employee. To the extent that the aggregate Fair Market Value (as defined in
the Plan and determined at the time the respective Incentive Stock Option is
granted) of Stock with respect to which Incentive Stock Options are
exercisable for the first time by an individual during any calendar year
under all incentive stock option plans of the Company and its Affiliates (as
defined in the Plan) exceeds $100,000, such Incentive Stock Options shall be
treated as Nonqualified Stock Options as determined by the Committee. The
Committee shall determine, in accordance with applicable provisions of the
Internal Revenue Code (the "Code"), Treasury Regulations and other
administrative pronouncements, which of an optionee's Incentive Stock Options
will not constitute Incentive Stock Options because of such limitation and
shall notify the optionee of such determination as soon as practicable after
such determination. No Incentive Stock Option shall be granted to an
individual if, at the time the Option is granted, such individual owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of its parent or subsidiary corporation, within the
meaning of section 422(b)(6) of the Code, unless (i) at the time such Option
is granted the option price is at least 110% of the Fair Market Value of the
Stock subject to the Option and (ii) such Option by its terms is not
exercisable after the expiration of five years from the date of grant.
31
Each Option shall be evidenced by an Option Agreement in such form and
containing such provisions not inconsistent with the provisions of the Plan as
the Committee from time to time shall approve, including, without limitation,
provisions to qualify an Incentive Stock Option under section 422 of the Code.
An Option Agreement may provide for the payment of the option price, in whole
or in part, in cash or by the delivery of a number of shares of Stock (plus
cash if necessary) having a Fair Market Value equal to such option price. Each
Option shall specify the effect of termination of employment (by retirement,
disability, death or otherwise) on the exercisability of the Option. Moreover,
an Option Agreement may provide for a "cashless exercise" of the Option.
The price at which a share of Stock may be purchased upon exercise of an
Option shall be determined by the Committee, but (i) such purchase price shall
not be less than the Fair Market Value of Stock subject to an Incentive Stock
Option on the date the Incentive Stock Option is granted and (ii) such purchase
price shall be subject to adjustment as provided in the Plan. The Option or
portion thereof may be exercised by delivery of an irrevocable notice of
exercise to the Company. The purchase price of the Option or portion thereof
shall be paid in full in the manner prescribed by the Committee.
The Holder shall be entitled to all the privileges and rights of a
stockholder only with respect to such shares of Stock as have been purchased
under the Option and for which certificates of stock have been registered in
the Holder's name.
In the event that a Holder's employment by the Company shall terminate for
any reason, other than disability or death, all of any such Holder's Incentive
Stock Options, and all of any such Holder's rights to purchase or receive
shares of Stock pursuant thereto, as the case may be, shall automatically
terminate on the date of such termination of employment. However, no
termination of a Holder's Incentive Stock Options shall occur if, and to the
extent that, the Committee authorizes the Holder to exercise any such Incentive
Stock Options at any time prior to the earlier of (i) the respective expiration
dates of any such Incentive Stock Options, or (ii) the expiration of not more
than three (3) months after the date of such termination of employment, but
only if, and to the extent that, the Holder was entitled to exercise any such
Incentive Stock Options at the date of such termination of employment. In the
event that an Affiliate or Subsidiary ceases to be an Affiliate or Subsidiary,
the employment of all of its employees who are not immediately thereafter
employees of the Company shall be deemed to terminate upon the date such
Affiliate or Subsidiary ceases to be an Affiliate or Subsidiary.
In the event of the determination of disability of a Holder while the
Holder is employed by the Company, the Incentive Stock Options previously
granted to him or her may be exercised (to the extent he or she would have been
entitled to do so at the date of the determination of disability) at any time
and from time to time, within a one year period after the date of such
determination of disability, by the former employee, but in no event may the
Incentive Stock Option be exercised after its expiration under the terms of the
Option Agreement. An Optionee shall be deemed to be disabled if, in the
opinion of a physician selected by the Committee, he or she is incapable of
performing services for the Company of the kind he or she was performing at the
time the disability occurred by reason of any medically determinable physical
or mental
32
impairment which can be expected to result in death or to be of long,
continued and indefinite duration. The date of determination of disability
for purposes hereof shall be the date of such determination by such physician.
In the event of the death of Holder while the Holder is employed by the
Company, the Incentive Stock Options previously granted to him or her may be
exercised (to the extent the Holder would have been entitled to do so at the
date of death) at any time and from time to time, within a six (6) month
period after the date of death (or such later period not exceeding one (1)
year to which the Committee may, in its discretion, extend such period), by
the guardian of his or her estate, the executor or administrator of his or
her estate or by the person or persons to whom his or her rights under the
option shall pass by will or the laws of descent and distribution, but in no
event may the Incentive Stock Option be exercised after its expiration under
the terms of the Option Agreement.
The terms and conditions of Nonqualified Stock Options relating to the
effect of the termination of a Holder's employment or service on the Board,
death or disability shall be such terms and conditions as the Committee shall,
in its sole discretion, determine at the time of grant or at the time of such
termination, disability or death.
STOCK APPRECIATION RIGHTS
A Stock Appreciation Right is the right to receive an amount equal to
the Spread (as defined in the Plan) with respect to a share of Stock upon the
exercise of such Stock Appreciation Right. Stock Appreciation Rights may be
granted in connection with the grant of an Option, in which case the Option
Agreement will provide that exercise of Stock Appreciation Rights will result
in the surrender of the right to purchase the shares under the Option as to
which the Stock Appreciation Rights were exercised. Alternatively, Stock
Appreciation Rights may be granted independently of Options in which case
each Award of Stock Appreciation Rights shall be evidenced by a Stock
Appreciation Rights Agreement which shall contain such terms and conditions
as may be approved by the Committee. The Spread with respect to a Stock
Appreciation Right may be payable either in cash, shares of Stock with a Fair
Market Value equal to the Spread or in a combination of cash and shares of
Stock. With respect to Stock Appreciation Rights that are subject to Section
16 of the 1934 Act, however, the Committee shall, except as provided in
Paragraph IX.(c) of the Plan, retain sole discretion (i) to determine the
form in which payment of the Stock Appreciation Right will be made (I.E.,
cash, securities or any combination thereof) or (ii) to approve an election
by a Holder to receive cash in full or partial settlement of Stock
Appreciation Rights. Each Stock Appreciation Rights Agreement shall specify
the effect of termination of employment (by retirement, disability, death or
otherwise) on the exercisability of the Stock Appreciation Rights. At the
time of such Award, the Committee may, in its sole discretion, prescribe
additional terms, conditions or restrictions relating to Stock Appreciation
Rights.
The exercise price of each Stock Appreciation Right shall be determined by
the Committee, but such exercise price shall be subject to adjustment as
provided in the Plan. The term of each Stock Appreciation Right shall be as
specified by the Committee at the date of grant.
33
A Stock Appreciation Right shall be exercisable in whole or in such
installments and at such times as determined by the Committee.
RECAPITALIZATION OR REORGANIZATION
The shares with respect to which Awards may be granted are shares of stock
as presently constituted, but if, and whenever, prior to the expiration of an
Award theretofore granted, the Company shall effect a subdivision or
consolidation by the Company, the number of shares of Stock with respect to
which such Award may thereafter be exercised or satisfied, as applicable,
(i) in the event of an increase in the number of outstanding shares shall be
proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the purchase price per
share shall be proportionately increased.
If the Company recapitalizes or otherwise changes its capital structure,
thereafter upon any exercise or satisfaction, as applicable, of an Award
theretofore granted the Holder shall be entitled to (or entitled to purchase,
if applicable) under such Award, in lieu of the number of shares of Stock then
covered by such Award, the number and class of shares of stock and securities
to which the Holder would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization, the Holder had
been the holder of record of the number of shares of Stock then covered by such
Award.
In the event of a Change of Control (as defined in the Plan), all
outstanding Awards shall immediately vest and become exercisable or
satisfiable, as applicable. The Committee, in its discretion, may determine
that upon the occurrence of a Change of Control, each Award other than an
outstanding Option shall terminate within a specified number of
days after notice to the Holder, and such Holder shall receive, with respect
to each share of Stock subject to such Award, cash in an amount equal to the
excess, if any, of the Change of Control Value (as defined in the Plan) over
any exercise price or purchase price paid, if applicable. Further, in the
event of a Change of Control, the Committee, in its discretion, shall act to
effect one or more of the following alternatives with respect to outstanding
Options, which may vary among individual Holders and which may vary among
Options held by any individual Holder: (1) determine a limited period of
time on or before a specified date (before or after such Change of Control)
after which specified date all unexercised Options and all rights of Holders
thereunder shall terminate, (2) require the mandatory surrender to the
Company by selected Holders of some or all of the outstanding Options held by
such Holders (irrespective of whether such Options are then exercisable under
the provisions of the Plan) as of a date, before or after such Change of
Control, specified by the Committee, in which event the Committee shall
thereupon cancel such Options and the Company shall pay to each Holder an
amount of cash per share equal to the excess, if any, of the Change of
Control Value of the shares subject to such Option over the exercise price(s)
under such Options for such shares, (3) make such adjustments to Options then
outstanding as the Committee deems appropriate to reflect such Change of
Control (provided, however, that the Committee may determine in its sole
discretion that no adjustment is necessary to Options then outstanding), or
(4) provide that thereafter upon any exercise of an Option theretofore
granted the Holder shall be entitled to purchase under such Option, in lieu
of the number of shares of Stock then covered by
34
such Option, the number and class of shares of stock or other securities or
property (including, without limitation, cash) to which the Holder would have
been entitled pursuant to the terms of the agreement of merger, consolidation
or sale of assets and dissolution if, immediately prior to such merger,
consolidation or sale of assets and dissolution the Holder has been the
holder of record of the number of shares of Stock then covered by such Option.
In the event of changes in the outstanding Stock by reason of
recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges or other relevant changes in capitalization occurring after the
date of the grant of any Award and not otherwise provided for by the Plan,
any outstanding Awards and any agreements evidencing such Awards shall be
subject to adjustment by the Committee at its discretion as to the number and
price of shares of Stock or other consideration subject to such Awards. In
the event of any such change in the outstanding Stock, the aggregate number
of shares available under the Plan may be appropriately adjusted by the
Committee, whose determination shall be conclusive.
AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Awards have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided that no change in any Award theretofore granted may be
made which would impair the rights of the Holder without the consent of the
Holder (unless such change is required in order to cause the benefits under the
Plan to qualify as performance-based compensation within the meaning of
section 162(m) of the Code and applicable interpretive authority thereunder),
and provided, further, that the Board may not, without approval of the
stockholders, amend the Plan:
(a) to increase the maximum number of shares which may be issued on
exercise or surrender of an Award, except as provided in the Plan;
(b) to change the class of employees eligible to receive Awards or
materially increase the benefits accruing to employees under the Plan;
(c) to extend the maximum period during which Awards may be granted under
the Plan;
(d) to modify materially the requirements as to eligibility for
participation in the Plan; or
(e) to decrease any authority granted to the Committee under the Plan in
contravention of Rule 16b-3.
FEDERAL INCOME TAX CONSEQUENCES
Under present federal tax laws, awards under the Plan will have the
following consequences:
35
(1) The grant of an award will not, by itself, result in the recognition
of taxable income to the participant nor entitle the Company to a
deduction at the time of such grant.
(2) The exercise of a Stock Option which is an "Incentive Stock Option"
within the meaning of the Code generally will not, by itself, result
in the recognition of taxable income to the participant or entitle
the Company to a deduction at the time of such exercise. However,
the difference between the exercise price and the fair market value
of the option shares on the date of exercise is an item of tax
preference which may, in certain situations, trigger the alternative
minimum tax. The alternative minimum tax is incurred only when it
exceeds the regular income tax. The participant will recognize
capital gain or loss upon resale of the shares received upon such
exercise, provided that he or she held such shares for at least one
year after transfer of the shares to him or her or two years after
the grant of the Stock Option, whichever is later. Generally, if the
shares are not held for that period, the participant will recognize
ordinary income upon disposition in an amount equal to the difference
between the exercisable price and the fair market value on the date
of exercise of the shares acquired pursuant to the Stock Option.
(3) The exercise of a Nonqualified Stock Option will result in the
recognition of ordinary income by the participant on the date of
exercise in an amount equal to the difference between the exercise
price and the fair market value on the date of exercise of the shares
acquired pursuant to the Stock Option.
(4) The exercise of a Stock Appreciation Right will result in the
recognition of ordinary income by the participant on the date of
exercise in an amount equal to the amount of cash, and/or the fair
market value on the date the shares are acquired pursuant to the
exercise.
(5) The Company will be allowed a deduction equal to the amount of
ordinary income at the time the participant recognizes such ordinary
income.
The Plan could be considered to have an anti-takeover effect because the
issuance of additional shares pursuant to the exercise of stock options
represents additional consideration that an acquiror would have to pay and
additional votes that could possibly be utilized by the Board of Directors to
vote against an unfriendly party. The Board of Directors, however, notes that
it did not adopt the Plan specifically for anti-takeover purposes.
The Board of Directors has determined that the Plan is desirable, cost
effective and produces employee incentives which will benefit the Company and
its shareholders.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE 1997
STOCK OPTION AND INCENTIVE PLAN ATTACHED HERETO AS EXHIBIT "B."
36
PROPOSAL 6 - APPROVAL OF
THE NON-EMPLOYEE DIRECTOR RETAINER PLAN
BACKGROUND
The Board of Directors has adopted, subject to the approval of the
shareholders, the Non-Employee Director Retainer Plan (the "Director Retainer
Plan") which provides for the payment of a portion of the directors fees in
shares of common stock to non-employee directors. The purpose of the
Director Retainer Plan is to promote the interests of the Company and
shareholders by providing non-employee directors a greater financial stake in
the Company through ownership of common stock in addition to underscoring
their common interest with shareholders in increasing the value of the common
stock over the long term.
DESCRIPTION OF THE NON-EMPLOYEE DIRECTOR RETAINER PLAN
A copy of the Director Retainer Plan is attached hereto as Exhibit "C",
and the following summary is qualified in its entirety by reference to the
specific provisions of the Director Retainer Plan.
The Director Retainer Plan would become effective on May 30, 1997, if
approved by the shareholders, and calls for the non-employee directors to
receive, in lieu of cash, 50% of their directors meeting fees in fair market
value of common stock. The fair market value is determined based upon the
average of the high and low prices of the common stock on the last NASDAQ
trading day of the month the fee is payable. The non-employee director may
elect to receive his or her total meeting fee in fair market value of common
stock. The plan defers the recognition of compensation by the director by
deferring the issuance of common stock to the director until he or she leaves
the Board. The director's account will also be credited with fair market
value of common stock equal to cash dividends on common stock that would have
been received had the common stock been issued when earned. A total of
50,000 shares of common stock have been reserved for issuance under this
plan. Based on the last trade on NASDAQ on April 14, 1997, at the price of
$5.25, the aggregate value of the 50,000 shares would be $262,500. The
Company is unable to determine how many shares of stock would have been
issued in 1996 if the Director Retainer Plan had been in effect in 1996.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE
NON-EMPLOYEE DIRECTOR RETAINER PLAN ATTACHED HERETO AS EXHIBIT "C".
37
PROPOSAL 7 - RATIFICATION OF APPOINTMENT OF AUDITORS
The Board of Directors has heretofore hired Robinson Burdette Martin &
Cowan, L.L.P., Independent Public Accountants, to be its External Auditors
for the 1997 fiscal year, subject to ratification by the Company's
Stockholders. A representative of Robinson Burdette Martin & Cowan, L.L.P.,
is expected to be present at the Annual Meeting, will have the opportunity to
make a statement if he desires to do so, and will be available to respond to
appropriate questions.
During the 1996 fiscal year, Robinson Burdette Martin & Cowan, L.L.P.
provided services to the Company and the Bank in connection with its annual
External Audit function, which included an examination of the consolidated
financial statements, assistance in preparation of reports filed on behalf of
the Company and the Bank with the OTS and the Securities and Exchange
Commission (the "SEC"), and meeting with the Bank's Audit Committee relative
to the audit.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE APPROVAL
OF THE APPOINTMENT OF ROBINSON BURDETTE MARTIN & COWAN, L.L.P., AS EXTERNAL
AUDITORS.
OTHER MATTERS
The Board of Directors is not aware of any business to come before the
meeting other than those matters described above in this Proxy Statement.
However, if any other matters should properly come before the Meeting, it is
intended that Proxies in the accompanying form will be voted in respect
thereof as determined by a majority of the Board of Directors.
COMPLIANCE WITH EXCHANGE ACT REQUIREMENTS
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's Directors and executive officers, and persons who own
more than 10% of a registered class of the registrant's equity securities to
file with the SEC initial reports of ownership and reports of changes in
ownership of equity securities of the registrant. Officers, directors, and
greater than 10% shareholders are required to furnish the Company with copies
of all Section 16(a) forms they file.
To the Company's knowledge, based solely on review of the copies of such
reports furnished to the Company and the Bank with respect to the fiscal year
ended December 31, 1996, all Section 16(a) requirements applicable to
officers, directors, and greater than 10% shareholders were complied with.
MISCELLANEOUS
The cost of solicitation of Proxies will be borne by the Company. In
addition to solicitation by mail, directors, officers, and employees of the
Company may solicit Proxies personally or by telegraph or telephone without
additional compensation.
38
All Stockholders of record as of the close of business on April 9, 1997
have been mailed the Company's Annual Report. Any Stockholder who has not
received a copy of such Annual Report may obtain a copy by writing to the
Company. Such Annual Report is not to be treated as a part of the Proxy
solicitation material nor as having been incorporated herein by reference.
STOCKHOLDER PROPOSALS
In order to be eligible for inclusion in the Company's Proxy materials
for next year's Annual Meeting of Stockholders, any Stockholder proposal to
take action at such meeting must be received at the Company's Main Office at
801 Pile Street, P.O. Box 1569, Clovis, New Mexico, 88101 no later than
December 18, 1997. Any such proposals shall be subject to the requirements of
the Proxy rules adopted under the Securities Exchange Act of 1934, as amended.
BY ORDER OF THE BOARD OF DIRECTORS
Kathy Allenberg
Corporate Secretary
Clovis, New Mexico
April 17, 1997
FORM 10-KSB
A COPY OF THE COMPANY'S FORM 10-KSB FOR THE FISCAL YEAR ENDING DECEMBER 31,
1996 (THE "1996 10-KSB"), AS FILED WITH THE SEC, WAS INCLUDED AS PART OF THE
1996 ANNUAL REPORT TO STOCKHOLDERS PREVIOUSLY MAILED TO STOCKHOLDERS. IN
ADDITION, A COPY OF THE 1996 10-KSB WILL BE FURNISHED WITHOUT CHARGE TO
STOCKHOLDERS AS OF THE RECORD DATE UPON WRITTEN REQUEST TO KATHY ALLENBERG,
CORPORATE SECRETARY, ACCESS ANYTIME BANCORP, INC., P.O. BOX 1569, 801 PILE
STREET, CLOVIS, NEW MEXICO 88101.
39
EXHIBIT A
TEXT OF "FAIR PRICE" AMENDMENT
The following would be added as a new Article Fourteenth of the
Company's Certificate of Incorporation:
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly provided in
this Section:
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder, or any Affiliate of any Interested
Stockholder, of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereafter defined) equaling or exceeding
25% or more of the combined assets of the Corporation and its
Subsidiaries; or
3. the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair
Market Value equaling or exceeding 25% of the combined assets of the
Corporation and its Subsidiaries except pursuant to an employee benefit
plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Interested
Stockholder or any Affiliate of any Interested Stockholder; or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder (a "Disproportionate
Transaction"); provided, however, that no such transaction shall be deemed
a Disproportionate Transaction if the increase in the proportionate
ownership of
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the Interested Stockholder or Affiliate as a result of such
transaction is no greater than the increase experienced by the other
stockholders generally;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then-outstanding shares of stock of the Corporation
entitled to vote in the election of directors (the "Voting Stock,"), voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by any other provisions of this
Certificate of Incorporation or any Preferred Stock Designation or in any
agreement with any national securities exchange or quotation system or
otherwise.
The term "Business Combination" as used in this Article Fourteenth shall
mean any transaction which is referred to in any one or more of paragraphs 1
through 5 of Section A of this Article Fourteenth.
B. The provisions of Section A of this Article Fourteenth shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only the affirmative vote of the majority of the
outstanding shares of capital stock entitled to vote, or such vote as is
required by law or by this Certificate of Incorporation, if, in the case of
any Business Combination that does not involve any cash or other
consideration being received by the stockholders of the Corporation solely in
their capacity as stockholders of the Corporation, the condition specified in
the following paragraph 1 is met or, in the case of any other Business
Combination, all of the conditions specified in either of the following
paragraphs 1 and 2 are met:
1. The Business Combination shall have been approved by a majority of
the Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by the holders
of Common Stock in such Business Combination shall at least be equal
to the higher of the following:
I. (if applicable) the Highest Per Share Price, including any
brokerage commissions, transfer taxes and soliciting dealers'
fees, paid by the Interested Stockholder or any of its
Affiliates for any shares of Common Stock acquired by it (X)
within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date"), or (Y) in the transaction in which it
became an Interested Stockholder, whichever is higher.
II. the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder
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became an Interested Stockholder (such latter date
is referred to in this Article Fourteenth as the "Determination
Date"), whichever is higher.
(b) The aggregate amount of the cash and the Market Value as of
the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class of outstanding Voting Stock other than Common
Stock shall be at least equal to the highest of the following (it
being intended that the requirement of this subparagraph (b) shall be
required to be met with respect to every such class of outstanding
Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting
Stock):
I. (if applicable) the Highest Per Share Price (as hereinafter
defined) including any brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested Stockholder for
any shares of such class of Voting Stock acquired by it (X)
within the two-year period immediately prior to the Announcement
Date, or (Y) in the transaction in which it became an Interested
Stockholder, whichever is higher;
II. (if applicable) the highest preferential amount per share
to which holders of shares of such class of Voting Stock are
entitled in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
III. the Fair Market Value per share of such class of voting
stock on the Announcement Date or on the Determination Date,
whichever is higher.
(c) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has
previously paid for shares of such class of Voting Stock. If the
Interested Stockholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of consideration
to be received per share by holders of shares of such class of Voting
Stock shall be either cash or the form used to acquire the largest
number of shares of such class of Voting Stock previously acquired by
the Interested Stockholder. The price determined in accordance with
subparagraph B.2 of this Article Fourteenth shall be subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination; (i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding stock having
preference over the Common Stock as to dividends or liquidation; (ii)
there shall have been
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(X) no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any subdivision of
the Common Stock), except as approved by a majority of the
Disinterested Directors, and (Y) an increase in such
annual rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization
or any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock, unless the failure to
so increase such annual rate is approved by a majority of the
Disinterested Directors; and (iii) neither such Interested
Stockholder nor any of its Affiliates shall have become the
beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Stockholder
becoming an Interested Stockholder.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to stockholders of the Corporation at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
C. For the purposes of this Article Fourteenth:
1. A "Person" shall include an individual, a group acting in
concert, a corporation, a partnership, an association, a joint venture, a
pool, a joint stock company, a trust, an unincorporated organization or
similar company, a syndicate or any other group formed for the purpose of
acquiring, holding or disposing of securities.
2. "Interested Stockholder" shall mean any Person (other than the
Corporation or any holding company or Subsidiary thereof) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than 10% of the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the
voting power of the then-outstanding Voting Stock; or
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(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
3. A Person shall be a "beneficial owner" of any Voting Stock:
(a) which such Person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly,
within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on December 31, 1996; or
(b) which such Person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding (but neither such Person nor any such
Affiliate or Associate shall be deemed to be the beneficial owner of
any shares of Voting Stock solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a
public solicitation of proxies for such meeting, and with respect to
which shares neither such Person nor any such Affiliate or Associate
is otherwise deemed the beneficial owner); or
(c) which are beneficially owned, directly or indirectly,
within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on December 31, 1996, by any other Person with
which such Person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purposes of
acquiring, holding, voting (other than solely by reason of a
revocable proxy as described in Subparagraph (b) of this Paragraph 3)
or in disposing of any shares of Voting Stock;
provided, however, that, in the case of any employee stock ownership or
similar plan of the Corporation or of any Subsidiary in which the
beneficiaries thereof possess the right to vote any shares of Voting Stock
held by such plan, no such plan nor any trustee with respect thereto (nor any
Affiliate of such trustee), solely by reason of such capacity of such
trustee, shall be deemed, for any purposes hereof, to beneficially own any
shares of Voting Stock held under any such plan.
4. For the purpose of determining whether a Person is an
Interested Stockholder pursuant to Paragraph 2 of this Section C, the number
of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of Paragraph 3 of this Section C but shall
not include any other shares of Voting Stock which may be issuable
A-5
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule l2b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December 31, 1996.
6. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Interested Stockholder set forth in Paragraph 2 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class
of equity security is owned, directly or indirectly, by the Corporation.
7. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a
member of the Board of Directors prior to the time that the Interested
Stockholder became an Interested Stockholder, and any director who is
thereafter chosen to fill any vacancy on the Board of Directors or who is
elected and who, in either event, is unaffiliated with the Interested
Stockholder, and in connection with his or her initial assumption of office
is recommended for appointment or election by a majority of Disinterested
Directors then on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the
highest closing sales price of the stock during the 30-day period immediately
preceding the date in question of a share of such stock of the National
Association of Securities Dealers Automated Quotations ("NASDAQ") System or
any system then in use, or, if such stock is admitted to trading on a
principal United States securities exchange registered under the Securities
Exchange Act of 1934, Fair Market Value shall be the highest sale price
reported during the 30-day period preceding the date in question, or, if no
such quotations are available, the Fair Market Value on the date in question
of a share of such stock as determined by the Board of Directors in good
faith, in each case with respect to any class of stock, appropriately
adjusted for any dividend or distribution in shares of such stock or in
combination or reclassification of outstanding shares of such stock into a
smaller number of shares of such stock, and (b) in the case of property other
than cash or stock, the Fair Market Value of such property on the date in
question as determined by the Board of Directors in good faith.
9. Reference to "Highest Per Share Price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number of
shares of such stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such stock.
10. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in Subparagraphs (a) and (b) of Paragraph 2 of Section B of
this Article Fourteenth shall include the shares of Common
A-6
Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
D. A majority of the Disinterested Directors of the Corporation shall
have the power and duty to determine for the purposes of this Article
Fourteenth, on the basis of information known to them after reasonable
inquiry, (a) whether a person is an Interested Stockholder; (b) the number of
shares of Voting Stock beneficially owned by any person; (c) whether a person
is an Affiliate or Associate of another; and (d) whether the assets which are
the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value
equaling or exceeding 25% of the combined assets of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have the
further power to interpret all of the terms and provisions of this Article
Fourteenth.
E. Nothing contained in this Article Fourteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
F. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, this
Certificate of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then-outstanding shares of the Voting Stock, voting together as a single
class, shall be required to alter, amend, change or repeal, or adopt any
provisions inconsistent with, this Article Fourteenth; provided, however,
that the foregoing provisions of this subparagraph F shall not apply to, and
such vote shall not be required for, any such amendment, alteration, change,
repeal or adoption approved by a majority of the Disinterested Directors, and
any such amendment, alteration, change, repeal or adoption so approved shall
require only such vote, if any, as is required by law, any other provision of
the Certificate of Incorporation or the By-Laws of the Corporation.
A-7
EXHIBIT B
ACCESS ANYTIME BANCORP, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
I. PURPOSE
The purpose of the ACCESS ANYTIME BANCORP, INC. 1997 STOCK OPTION AND
INCENTIVE PLAN (the "PLAN") is to provide a means through which Access Anytime
Bancorp, Inc., a Delaware corporation (the "COMPANY"), and its subsidiaries,
may attract and retain the best available personnel as officers, directors and
employees of the Company and its subsidiaries and to provide a means whereby
those individuals upon whom the responsibilities of the successful
administration and management of the Company and its subsidiaries rest, and
whose present and potential contributions to the welfare of the Company and its
subsidiaries are of importance, can acquire and maintain stock ownership,
thereby strengthening their concern for the welfare of the Company and its
subsidiaries and their desire to remain in the Company's and its subsidiaries'
employ. A further purpose of the Plan is to provide such individuals with
additional incentive and reward opportunities designed to enhance the
profitable growth of the Company. Accordingly, the Plan provides for granting
Incentive Stock Options, options which do not constitute Incentive Stock
Options, Stock Appreciation Rights, or any combination of the foregoing, as is
best suited to the circumstances of the particular individual as provided
herein.
II. DEFINITIONS
The following definitions shall be applicable throughout the Plan unless
specifically modified by any paragraph:
(a) "AFFILIATES" means any "parent corporation" of the Company and any
"subsidiary" of the Company within the meaning of Code Sections 424(e) and (f),
respectively.
(b) "AWARD" means, individually or collectively, any Option or Stock
Appreciation Right.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) the Company shall not be the surviving entity in any merger,
consolidation or other reorganization (or survives only as a subsidiary of an
entity other than a previously wholly-owned subsidiary of the Company), (ii)
the Company sells, leases or exchanges all or substantially all of its assets
to any other person or entity (other than a wholly-owned subsidiary of the
Company), (iii) the Company is to be dissolved and liquidated, (iv) any person
or entity, including a "group" as contemplated by Section 13(d)(3) of the 1934
Act, acquires or gains ownership or control (including, without limitation,
power to vote) of more than 50% of the outstanding shares of the Company's
voting
B-1
stock (based upon voting power), or (v) as a result of or in connection
with a contested election of directors, the persons who were directors of the
Company before such election shall cease to constitute a majority of the Board.
(e) "CHANGE OF CONTROL VALUE" shall mean (i) the per share price offered
to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Change of Control takes place, or (iii) if such Change of
Control occurs other than pursuant to a tender or exchange offer, the Fair
Market Value per share of the shares into which Awards are exercisable, as
determined by the Committee, whichever is applicable. In the event that the
consideration offered to stockholders of the Company consists of anything other
than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.
(f) "CODE" means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to any section and any regulations under
such section.
(g) "COMMITTEE" means the Stock Committee of the Board. If the Company
is governed by Section 16 of the 1934 Act, no director shall serve as a member
of the Committee unless he or she is a "Non-Employee Director" within the
meaning of Rule 16b-3 promulgated by the Securities and Exchange Commission
(the "Commission") under the 1934 Act.
(h) "COMPANY" means Access Anytime Bancorp, Inc..
(i) "DIRECTOR" means an individual elected to the Board by the
stockholders of the Company or by the Board under applicable corporate law who
is serving on the Board on the date the Plan is adopted by the Board or is
elected to the Board after such date.
(j) An "EMPLOYEE" means any person (including an officer or a Director)
employed on a full-time basis by the Employer.
(k) "EMPLOYER" means the Company, an Affiliate or any Subsidiary.
(l) "FAIR MARKET VALUE" means, as of any specified date, the mean of the
high and low sales prices of the Stock (i) reported by any interdealer
quotation system on which the Stock is quoted on that date or (ii) if the Stock
is listed on a national stock exchange, reported on the stock exchange
composite tape on that date; or, in either case, if no prices are reported on
that date, on the last preceding date on which such prices of the Stock are so
reported. If the Stock is traded over the counter at the time a determination
of its fair market value is required to be made hereunder, its fair market
value shall be deemed to be equal to the average between the reported high and
low or closing bid and asked prices of Stock on the most recent date on which
Stock was publicly traded. In the event Stock is not publicly traded at the
time a determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate.
B-2
(m) "HOLDER" means an employee who has been granted an Award.
(n) "INCENTIVE STOCK OPTION" means an incentive stock option within the
meaning of section 422(b) of the Code.
(o) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(p) "NONQUALIFIED STOCK OPTION" means an option granted under Paragraph
VII of the Plan to purchase Stock which does not constitute an Incentive Stock
Option.
(q) "OPTION" means an Award granted under Paragraph VII of the Plan and
includes both Incentive Stock Options to purchase Stock and Nonqualified Stock
Options to purchase Stock.
(r) "OPTION AGREEMENT" means a written agreement between the Company and
a Holder with respect to an Option.
(s) "PLAN" means the Access Anytime Bancorp, Inc. 1997 Stock Option and
Incentive Plan, as amended from time to time.
(t) "RULE 16b-3" means SEC Rule 16b-3 promulgated under the 1934 Act, as
such may be amended from time to time, and any successor rule, regulation or
statute fulfilling the same or a similar function.
(u) "SPREAD" means, in the case of a Stock Appreciation Right, an amount
equal to the excess, if any, of the Fair Market Value of a share of Stock on
the date such right is exercised over the exercise price of such Stock
Appreciation Right; provided, however, the Committee may establish, in its sole
discretion, in any Stock Appreciation Rights Agreement, the maximum amount of
Spread attributable to a Stock Appreciation Right.
(v) "STOCK" means the common stock, $0.01 par value, of the Company.
(w) "STOCK APPRECIATION RIGHT" means an Award granted under
Paragraph VIII of the Plan.
(x) "STOCK APPRECIATION RIGHTS AGREEMENT" means a written agreement
between the Company and a Holder with respect to an Award of Stock Appreciation
Rights.
(y) "SUBSIDIARY" means any corporation or entity of which more than 50%
of the outstanding securities or ownership interests having ordinary voting
power to elect a majority of the members of the Board of Directors, or persons
in similar capacity of such corporation or entity, is, directly or indirectly
owned by the Company.
B-3
III. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective upon the date of its adoption by the Board,
provided that the Plan is approved by the stockholders of the Company within
twelve months thereafter. No further Awards may be granted under the Plan
after the expiration of ten years from the date of its adoption by the Board.
The Plan shall remain in effect until all Awards granted under the Plan have
been satisfied or expired.
IV. ADMINISTRATION
(a) COMMITTEE. The Plan shall be administered by the Committee.
(b) POWERS. Subject to the provisions of the Plan, the Committee shall
have sole authority, in its discretion, to determine which employees shall
receive an Award, the time or times when such Award shall be made, whether an
Incentive Stock Option, Nonqualified Option or Stock Appreciation Right shall
be granted, and the number of shares of Stock which may be issued under each
Option or Stock Appreciation Right. In making such determinations, the
Committee may take into account the nature of the services rendered by the
respective employees, their present and potential contributions to the
Employer's success and such other factors as the Committee in its discretion
shall deem relevant.
(c) ADDITIONAL POWERS. The Committee shall have such additional powers
as are delegated to it by the other provisions of the Plan. Subject to the
express provisions of the Plan, the Committee is authorized to construe the
Plan and the respective agreements executed thereunder, to prescribe such rules
and regulations relating to the Plan as it may deem advisable to carry out the
Plan, and to determine the terms, restrictions and provisions of each Award,
including such terms, restrictions and provisions as shall be requisite in the
judgment of the Committee to cause designated Options to qualify as Incentive
Stock Options, and to make all other determinations necessary or advisable for
administering the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in any agreement relating to an Award
in the manner and to the extent it shall deem expedient to carry it into
effect. The determinations of the Committee on the matters referred to in this
Article IV shall be conclusive.
(d) EXPENSES. All expenses and liabilities incurred by the Committee in
the administration of this Plan shall be borne by the Company. The Committee
may employ attorneys, consultants, accountants or other persons to assist the
Committee in the carrying out of its duties hereunder.
V. STOCK SUBJECT TO THE PLAN
(a) STOCK GRANT AND AWARD LIMITS. The Committee may from time to time
grant Awards to one or more employees determined by it to be eligible for
participation in the Plan in accordance with the provisions of Paragraph VI.
Subject to Paragraph IX, the aggregate number of shares of Stock that may be
issued under the Plan shall not exceed 180,000 shares. Shares of Stock shall
be deemed to have been issued under the Plan only to the extent actually
issued and
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delivered pursuant to an Award. To the extent that an Award lapses or the
rights of its Holder terminate or the Award is to only be paid in cash or is
paid in cash, any shares of Stock subject to such Award shall again be
available for the grant of an Award. To the extent that an Award lapses or the
rights of its Holder terminate, any shares of Stock subject to such Award shall
again be available for the grant of an Award. Separate stock certificates
shall be issued by the Company for those shares acquired pursuant the exercise
of an Incentive Stock Option and for those shares acquired pursuant to the
exercise of a Nonqualified Stock Option.
(b) STOCK OFFERED. The stock to be offered pursuant to the grant of an
Award may be authorized but unissued Stock or Stock previously issued and
outstanding and reacquired by the Company.
VI. ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are
officers, directors or other key employees. An Award may be granted on more
than one occasion to the same person, and, subject to the limitations set forth
in the Plan, such Award may include an Incentive Stock Option or a Nonqualified
Stock Option, a Stock Appreciation Right or any combination thereof.
VII. STOCK OPTIONS
(a) OPTION PERIOD. The term of each Option shall be as specified by the
Committee at the date of grant.
(b) LIMITATIONS ON EXERCISE OF OPTION. An Option shall be exercisable in
whole or in such installments and at such times as determined by the Committee.
No Incentive Stock Option granted pursuant to this Plan shall be exercised by
any Holder while there is outstanding any other Incentive Stock Option which
was granted prior to the date of grant of such Incentive Stock Option to such
Holder, whether pursuant to this Plan or any other plan of the Company. In the
event that any additional Incentive Stock Option is granted at a later date
pursuant to the Plan to any Holder, the instrument evidencing any such
additional Incentive Stock Option shall include the following provisions:
"This incentive stock option is not exercisable while there is
outstanding any incentive stock option which was granted prior to the
date of the grant hereof to the holder of this incentive stock option
to purchase shares of common stock of Access Anytime BanCorp, Inc. or
any of its subsidiaries."
(c) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. No Incentive Stock
Option may be granted to any Director who is not an employee. To the extent
that the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Stock with respect to which Incentive
Stock Options are exercisable for the first time by an individual during any
calendar year under all incentive stock option plans of the Company and its
Affiliates exceeds $100,000, such Incentive Stock Options shall be treated as
Nonqualified Stock Options as determined by the Committee. The Committee shall
determine, in accordance with applicable
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provisions of the Code, Treasury Regulations and other administrative
pronouncements, which of an optionee's Incentive Stock Options will not
constitute Incentive Stock Options because of such limitation and shall
notify the optionee of such determination as soon as practicable after such
determination. No Incentive Stock Option shall be granted to an individual
if, at the time the Option is granted, such individual owns stock possessing
more than 10% of the total combined voting power of all classes of stock of
the Company or of its parent or subsidiary corporation, within the meaning of
section 422(b)(6) of the Code, unless (i) at the time such Option is granted
the option price is at least 110% of the Fair Market Value of the Stock
subject to the Option and (ii) such Option by its terms is not exercisable
after the expiration of five years from the date of grant.
(d) OPTION AGREEMENT. Each Option shall be evidenced by an Option
Agreement in such form and containing such provisions not inconsistent with the
provisions of the Plan as the Committee from time to time shall approve,
including, without limitation, provisions to qualify an Incentive Stock Option
under section 422 of the Code. An Option Agreement may provide for the payment
of the option price, in whole or in part, in cash or by the delivery of a
number of shares of Stock (plus cash if necessary) having a Fair Market Value
equal to such option price. Each Option shall specify the effect of
termination of employment (by retirement, disability, death or otherwise) on
the exercisability of the Option. Moreover, an Option Agreement may provide
for a "cashless exercise" of the Option by establishing procedures whereby the
Holder, by a properly-executed written notice, directs (i) an immediate market
sale or margin loan respecting all or a part of the shares of Stock to which he
is entitled upon exercise pursuant to an extension of credit by the Company to
the Holder of the option price, (ii) the delivery of the shares of Stock from
the Company directly to a brokerage firm and (iii) the delivery of the option
price from the sale or margin loan proceeds from the brokerage firm directly to
the Company. Such Option Agreement may also include, without limitation,
provisions relating to (i) vesting of Options, subject to the provisions hereof
accelerating such vesting on a Change of Control, (ii) tax matters (including
provisions (y) permitting the delivery of additional shares of Stock or the
withholding of shares of Stock from those acquired upon exercise to satisfy
federal or state income tax withholding requirements and (z) dealing with any
other applicable employee wage withholding requirements), and (iii) any other
matters not inconsistent with the terms and provisions of this Plan that the
Committee shall in its sole discretion determine. The terms and conditions of
the respective Option Agreements need not be identical.
(e) OPTION PRICE AND PAYMENT. The price at which a share of Stock may be
purchased upon exercise of an Option shall be determined by the Committee, but
(i) such purchase price shall not be less than the Fair Market Value of Stock
subject to an Incentive Stock Option on the date the Incentive Stock Option is
granted and (ii) such purchase price shall be subject to adjustment as provided
in Paragraph IX. The Option or portion thereof may be exercised by delivery of
an irrevocable notice of exercise to the Company. The purchase price of the
Option or portion thereof shall be paid in full in the manner prescribed by the
Committee.
(f) STOCKHOLDER RIGHTS AND PRIVILEGES. The Holder shall be entitled to
all the privileges and rights of a stockholder only with respect to such shares
of Stock as have been
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purchased under the Option and for which certificates of stock have been
registered in the Holder's name.
(g) OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS GRANTED BY OTHER
CORPORATIONS. Options and Stock Appreciation Rights may be granted under the
Plan from time to time in substitution for stock options held by individuals
employed by corporations who become employees as a result of a merger or
consolidation of the employing corporation with the Company, an Affiliate, or
any Subsidiary, or the acquisition by the Company, an Affiliate or a Subsidiary
of the assets of the employing corporation, or the acquisition by the Company,
an Affiliate or a Subsidiary of stock of the employing corporation with the
result that such employing corporation becomes a Subsidiary.
(h) EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY OR DEATH.
1. TERMINATION OF EMPLOYMENT. In the event that a Holder's
employment by the Company shall terminate for any reason, other than
disability or death, all of any such Holder's Incentive Stock Options, and
all of any such Holder's rights to purchase or receive shares of Stock
pursuant thereto, as the case may be, shall automatically terminate on the
date of such termination of employment. However, no termination of a
Holder's Incentive Stock Options shall occur if, and to the extent that,
the Committee authorizes the Holder to exercise any such Incentive Stock
Options at any time prior to the earlier of (i) the respective expiration
dates of any such Incentive Stock Options, or (ii) the expiration of not
more than three (3) months after the date of such termination of
employment, but only if, and to the extent that, the Holder was entitled
to exercise any such Incentive Stock Options at the date of such
termination of employment. In the event that an Affiliate or Subsidiary
ceases to be an Affiliate or Subsidiary, the employment of all of its
employees who are not immediately thereafter employees of the Company
shall be deemed to terminate upon the date such Affiliate or Subsidiary
ceases to be an Affiliate or Subsidiary.
2. DISABILITY. In the event of the determination of disability of
a Holder while the Holder is employed by the Company, the Incentive Stock
Options previously granted to him may be exercised (to the extent he or
she would have been entitled to do so at the date of the determination of
disability) at any time and from time to time, within a one year period
after the date of such determination of disability, by the former
employee, but in no event may the Incentive Stock Option be exercised
after its expiration under the terms of the Option Agreement. An Optionee
shall be deemed to be disabled if, in the opinion of a physician selected
by the Committee, he or she is incapable of performing services for the
Company of the kind he or she was performing at the time the disability
occurred by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of long,
continued and indefinite duration. The date of determination of
disability for purposes hereof shall be the date of such determination by
such physician.
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3. DEATH. In the event of the death of Holder while the Holder is
employed by the Company, the Incentive Stock Options previously granted to
him may be exercised (to the extent the Holder would have been entitled to
do so at the date of death) at any time and from time to time, within a
six (6) month period after the date of death (or such later period not
exceeding one (1) year to which the Committee may, in its discretion,
extend such period), by the guardian of his estate, the executor or
administrator of his estate or by the person or persons to whom his rights
under the option shall pass by will or the laws of descent and
distribution, but in no event may the Incentive Stock Option be exercised
after its expiration under the terms of the Option Agreement.
4. NONQUALIFIED STOCK OPTIONS. The terms and conditions of
Nonqualified Stock Options relating to the effect of the termination of a
Holder's employment or service on the Board, death or disability shall be
such terms and conditions as the Committee shall, in its sole discretion,
determine at the time of grant or at the time of such termination,
disability or death.
(i) OTHER RESTRICTIONS ON EXERCISE. The Committee may impose
additional conditions upon the right of any Holder to exercise any Option
granted hereunder which are not inconsistent with the terms of the Plan or,
with respect to Incentive Stock Options, are not inconsistent with the
requirements under Code Section 422.
VIII. STOCK APPRECIATION RIGHTS
(a) STOCK APPRECIATION RIGHTS. A Stock Appreciation Right is the right
to receive an amount equal to the Spread with respect to a share of Stock
upon the exercise of such Stock Appreciation Right. Stock Appreciation
Rights may be granted in connection with the grant of an Option, in which
case the Option Agreement will provide that exercise of Stock Appreciation
Rights will result in the surrender of the right to purchase the shares under
the Option as to which the Stock Appreciation Rights were exercised.
Alternatively, Stock Appreciation Rights may be granted independently of
Options in which case each Award of Stock Appreciation Rights shall be
evidenced by a Stock Appreciation Rights Agreement which shall contain such
terms and conditions as may be approved by the Committee. The Spread with
respect to a Stock Appreciation Right may be payable either in cash, shares
of Stock with a Fair Market Value equal to the Spread or in a combination of
cash and shares of Stock. With respect to Stock Appreciation Rights that are
subject to Section 16 of the 1934 Act, however, the Committee shall, except
as provided in Paragraph IX.(c), retain sole discretion (i) to determine the
form in which payment of the Stock Appreciation Right will be made (I.E.,
cash, securities or any combination thereof) or (ii) to approve an election
by a Holder to receive cash in full or partial settlement of Stock
Appreciation Rights. Each Stock Appreciation Rights Agreement shall specify
the effect of termination of employment (by retirement, disability, death or
otherwise) on the exercisability of the Stock Appreciation Rights.
(b) OTHER TERMS AND CONDITIONS. At the time of such Award, the
Committee may, in its sole discretion, prescribe additional terms, conditions
or restrictions relating to Stock Appreciation Rights. Such additional
terms, conditions or restrictions shall be set forth in the
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Stock Appreciation Rights Agreement made in conjunction with the Award. Such
Stock Appreciation Rights Agreements may also include, without limitation,
provisions relating to (i) vesting of Awards, subject to the provisions
hereof accelerating vesting on a Change of Control, (ii) tax matters
(includinG provisions covering applicable wage withholding requirements), and
(iii) any other matters not inconsistent with the terms and provisions of
this Plan, that the Committee shall in its sole discretion determine. The
terms and conditions of the respective Stock Appreciation Rights Agreements
need not be identical.
(c) EXERCISE PRICE. The exercise price of each Stock Appreciation
Right shall be determined by the Committee, but such exercise price shall be
subject to adjustment as provided in Paragraph IX.
(d) EXERCISE PERIOD. The term of each Stock Appreciation Right shall
be as specified by the Committee at the date of grant.
(e) LIMITATIONS ON EXERCISE OF STOCK APPRECIATION RIGHT. A Stock
Appreciation Right shall be exercisable in whole or in such installments and
at such times as determined by the Committee.
IX. RECAPITALIZATION OR REORGANIZATION
(a) The shares with respect to which Awards may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Award theretofore granted, the Company shall effect a
subdivision or consolidation by the Company, the number of shares of Stock
with respect to which such Award may thereafter be exercised or satisfied, as
applicable, (i) in the event of an increase in the number of outstanding
shares shall be proportionately increased, and the purchase price per share
shall be proportionately reduced, and (ii) in the event of a reduction in the
number of outstanding shares shall be proportionately reduced, and the
purchase price per share shall be proportionately increased.
(b) If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise or satisfaction, as applicable, of an
Award theretofore granted the Holder shall be entitled to (or entitled to
purchase, if applicable) under such Award, in lieu of the number of shares of
Stock then covered by such Award, the number and class of shares of stock and
securities to which the Holder would have been entitled pursuant to the terms
of the recapitalization if, immediately prior to such recapitalization, the
Holder had been the holder of record of the number of shares of Stock then
covered by such Award.
(c) In the event of a Change of Control, all outstanding Awards shall
immediately vest and become exercisable or satisfiable, as applicable. The
Committee, in its discretion, may determine that upon the occurrence of a
Change of Control, each Award other than an Option outstanding hereunder
shall terminate within a specified number of days after notice to the Holder,
and such Holder shall receive, with respect to each share of Stock subject to
such Award, cash in an amount equal to the excess, if any, of the Change of
Control Value over any exercise price or purchase price paid, if applicable.
Further, in the event of a Change of Control, the Committee, in
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its discretion, shall act to effect one or more of the following alternatives
with respect to outstanding Options, which may vary among individual Holders
and which may vary among Options held by any individual Holder: (1)
determine a limited period of time on or before a specified date (before or
after such Change of Control) after which specified date all unexercised
Options and all rights of Holders thereunder shall terminate, (2) require the
mandatory surrender to the Company by selected Holders of some or all of the
outstanding Options held by such Holders (irrespective of whether such
Options are then exercisable under the provisions of the Plan) as of a date,
before or after such Change of Control, specified by the Committee, in which
event the Committee shall thereupon cancel such Options and the Company shall
pay to each Holder an amount of cash per share equal to the excess, if any,
of the Change of Control Value of the shares subject to such Option over the
exercise price(s) under such Options for such shares, (3) make such
adjustments to Options then outstanding as the Committee deems appropriate to
reflect such Change of Control (provided, however, that the Committee may
determine in its sole discretion that no adjustment is necessary to Options
then outstanding), or (4) provide that thereafter upon any exercise of an
Option theretofore granted the Holder shall be entitled to purchase under
such Option, in lieu of the number of shares of Stock then covered by such
Option, the number and class of shares of stock or other securities or
property (including, without limitation, cash) to which the Holder would have
been entitled pursuant to the terms of the agreement of merger, consolidation
or sale of assets and dissolution if, immediately prior to such merger,
consolidation or sale of assets and dissolution the Holder has been the
holder of record of the number of shares of Stock then covered by such
Option. The provisions contained in this paragraph shall not terminate any
rights of the Holder to further payments pursuant to any other agreement with
the Company following a Change of Control.
(d) In the event of changes in the outstanding Stock by reason of
recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges or other relevant changes in capitalization occurring after the
date of the grant of any Award and not otherwise provided for by this
Paragraph IX, any outstanding Awards and any agreements evidencing such
Awards shall be subject to adjustment by the Committee at its discretion as
to the number and price of shares of Stock or other consideration subject to
such Awards. In the event of any such change in the outstanding Stock, the
aggregate number of shares available under the Plan may be appropriately
adjusted by the Committee, whose determination shall be conclusive.
(e) The existence of the Plan and the Awards granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of
the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of debt or
equity securities ahead of or affecting Stock or the rights thereof, the
dissolution or liquidation of the Company or any sale, lease, exchange or
other disposition of all or any part of its assets or business or any other
corporate act or proceeding.
(f) Any adjustment provided for in Subparagraphs (a), (b), (c) or (d)
above shall be subject to any required stockholder action.
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(g) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct
sale, upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares of obligations of the Company convertible into such
shares or other securities, and in any case whether or not for fair value,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Stock subject to Awards theretofore
granted or the purchase price per share, if applicable.
X. AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Awards have not theretofore been granted.
The Board shall have the right to alter or amend the Plan or any part thereof
from time to time; provided that no change in any Award theretofore granted
may be made which would impair the rights of the Holder without the consent
of the Holder (unless such change is required in order to cause the benefits
under the Plan to qualify as performance-based compensation within the
meaning of section 162(m) of the Code and applicable interpretive authority
thereunder), and provided, further, that the Board may not, without approval
of the stockholders, amend the Plan:
(a) to increase the maximum number of shares which may be issued on
exercise or surrender of an Award, except as provided in Paragraph IX;
(b) to change the class of employees eligible to receive Awards or
materially increase the benefits accruing to employees under the Plan;
(c) to extend the maximum period during which Awards may be granted
under the Plan;
(d) to modify materially the requirements as to eligibility for
participation in the Plan; or
(e) to decrease any authority granted to the Committee hereunder in
contravention of Rule 16b-3.
XI. MISCELLANEOUS
(a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan by the
Company nor any action of the Board or the Committee shall be deemed to give
an employee any right to be granted an Option, a right to a Stock
Appreciation Right, or any of the rights hereunder except as may be evidenced
by an Award or by an Option Agreement or Stock Appreciation Rights Agreement
on behalf of the Company, and then only to the extent and on the terms and
conditions expressly set forth therein. The Plan shall be unfunded. The
Company shall not be required to establish any special or separate fund or to
make any other segregation of funds or assets to assure the payment of any
Award.
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(b) EMPLOYEES' RIGHTS UNSECURED. The right of an employee to receive
Stock, cash or any other payment under this Plan shall be an unsecured claim
against the general assets of the Company. The Company may, but shall not be
obligated to, acquire shares of Stock from time to time in anticipation of
its obligations under this Plan, but a Participant shall have no right in or
against any shares of Stock so acquired. All Stock shall constitute the
general assets of the Company and may be disposed of by the Company at such
time and for such purposes as it deems appropriate.
(c) NO EMPLOYMENT RIGHTS CONFERRED. Nothing contained in the Plan
shall (i) confer upon any employee any right with respect to continuation of
employment with any Employer or (ii) interfere in any way with the right of
any Employer to terminate an employee's employment at any time.
(d) OTHER LAWS; WITHHOLDING. The Company shall not be obligated to
issue any Stock pursuant to any Award granted under the Plan at any time when
the shares covered by such Award have not been registered under the
Securities Act of 1933 and such other state and federal laws, rules or
regulations as the Company or the Committee deems applicable and, in the
opinion of legal counsel for the Company, there is no exemption from the
registration requirements of such laws, rules or regulations available for
the issuance and sale of such shares. Unless the Awards and Stock covered by
this Plan have been registered under the Securities Act of 1993, or the
Company has determined that such registration is unnecessary, each Holder
exercising an Award under this Plan may be required by the Company to give
representation in writing that such Holder is acquiring such shares for his
or her own account for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof. No fractional shares
of Stock shall be delivered, nor shall any cash in lieu of fractional shares
be paid. The Company shall have the right to deduct in connection with all
Awards any taxes required by law to be withheld and to require any payments
required to enable it to satisfy its withholding obligations.
(e) NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company, an Affiliate or any Subsidiary
from taking any corporate action which is deemed by the Company, an Affiliate
or any Subsidiary to be appropriate or in its best interest, whether or not
such action would have an adverse effect on the Plan or any Award made under
the Plan. No employee, beneficiary or other person shall have any claim
against the Company, an Affiliate or any Subsidiary as a result of any such
action.
(f) RESTRICTIONS ON TRANSFER. An Award shall not be transferable
otherwise than by will or the laws of descent and distribution and shall be
exercisable during the Holder's lifetime only by such Holder or the Holder's
guardian or legal representative.
(g) BENEFICIARY DESIGNATION. Each Holder may name, from time to time,
any beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
or her death before he or she receives any or all of such benefit. Each
designation will revoke all prior designations by the same Holder, shall be
in a form prescribed by the Committee, and will be effective only when filed
by the Holder in writing with
B-12
the Committee during his lifetime. In the absence of any such designation,
benefits remaining unpaid at the Holder's death shall be paid to his estate.
(h) RULE 16B-3. It is intended that the Plan and any grant of an Award
made to a person subject to Section 16 of the 1934 Act meet all of the
requirements of Rule 16b-3. If any provision of the Plan or any such Award
would disqualify the Plan or such Award under, or would otherwise not comply
with, Rule 16b-3, such provision or Award shall be construed or deemed
amended to conform to Rule 16b-3.
(i) SECTION 162(M). If the Plan is subject to Section 162(m) of the
Code, it is intended that the Plan comply fully with and meet all the
requirements of Section 162(m) of the Code so that Options and Stock
Appreciation Rights granted hereunder shall constitute "performance-based"
compensation within the meaning of such section. If any provision of the
Plan would disqualify the Plan or would not otherwise permit the Plan to
comply with Section 162(m) as so intended, such provision shall be construed
or deemed amended to conform to the requirements or provisions of Section
162(m); provided that no such construction or amendment shall have an adverse
effect on the economic value to a Holder of any Award previously granted
hereunder.
(j) INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting
from any claim, action, suit, or proceeding to which he may be a party or in
which he may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in
satisfaction of any judgment in any such action, suit, or proceeding against
him, provided he shall give the Company an opportunity, at its own expense,
to handle and defend the same before he undertakes to handle and defend it on
his own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Articles of Incorporation or Bylaws, as a matter
of law, under separate indemnification agreements, or otherwise, or any power
that the Company may have to indemnify them or hold them harmless.
(k) GOVERNING LAW. This Plan shall be construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by the Board, Access Anytime Bancorp, Inc. has caused this
document to be duly executed in its name and behalf by its proper officer
thereunto duly authorized as of this ____ day of _________, 1997.
By:
-------------------------------------
Name:
-----------------------------------
Title:
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EXHIBIT C
ACCESS ANYTIME BANCORP, INC.
NON-EMPLOYEE DIRECTOR RETAINER PLAN
SECTION I.
PURPOSES OF PLAN, EFFECTIVE DATE AND DEFINITIONS
1.1 PURPOSE. The purpose of the Access Anytime Bancorp, Inc. Non-
Employee Director Retainer Plan ("Plan") is to attract and retain the services
of experienced and knowledgeable non-employee directors and provide an
opportunity for ownership of the common stock, $0.01 par value ("Common
Stock"), of Access Anytime Bancorp, Inc., a Delaware corporation and unitary
thrift holding company ("Company"). The Plan shall be an unfunded deferred
compensation arrangement.
1.2 EFFECTIVE DATE. The Plan shall be effective as of May 30, 1997
("Effective Date") provided the Plan is approved by the stockholders of the
Company within twelve (12) months of the date the Plan is approved by the
Board. Notwithstanding any provision of the Plan, a Participant will not be
entitled to a distribution of Common Stock pursuant to Section V prior to the
approval of the Plan by the stockholders of the Company.
1.3 DEFINITIONS. For purposes of this Plan, the following phrases or
terms shall have the indicated meanings unless otherwise clearly apparent from
the context.
(a) "Beneficiary" means any person or persons so designated in
accordance with the provisions of Section 5.3.
(b) "Board" means the Board of Directors of the Company.
(c) "Compensation" means the sum of (i) the meeting fee a
Participant earns for services rendered as a Board member and (ii) the meeting
fee a Participant earns for services rendered on each committee of the Board on
which a Participant serves.
(d) "Fair Market Value" means the average (mean) of the reported
"high" and "low" sales prices for a share of Common Stock as reported on the
National Association of Securities Dealers Automated Quotations System, or, if
such prices shall not be reported thereon, the average between the closing bid
and asked prices so reported, or, if such prices shall not be reported, then
the average closing bid and asked prices reported by the national Quotation
Bureau Incorporated, or, in all other cases, the value established by the Board
in good faith.
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(e) "Last Trading Day" means the last day of each calendar month on
which shares of Common Stock are traded on the NASDAQ Small Cap Market. The
first Last Trading Day shall be May 30, 1997.
(f) "Participant" means each non-employee member of the Board.
(g) "Plan Year" means the twelve month period commencing on January
1st and ending December 31st.
(h) "Stock Unit" means a right to receive one share of Common Stock.
SECTION II.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board. Subject to the terms of the
Plan, the Board shall have the power to interpret the provisions and supervise
the administration of the Plan. All decisions made by the Board pursuant to
the provisions of the Plan shall be made by a majority of its members at a duly
held regular or special meeting or by written consent in lieu of any such
meeting. A majority of the directors in office shall constitute a quorum and
all decisions made by the Board pursuant to provisions of the Plan shall be
made by a majority of directors present at any duly held regular or special
meeting at which a quorum is present (unless the concurrence of a greater
proportion is required by law or by the articles or bylaws of the Company) or
by the written consent of a majority of the directors in lieu of any such
meeting.
SECTION III.
COMMON STOCK RESERVED FOR THE PLAN
3.1 RESERVED. The aggregate number of shares of Common Stock that
may be issued under the Plan shall not exceed 50,000. The Company shall at all
times reserve a sufficient number of shares of Common Stock to satisfy the
requirements of the Plan.
3.2 COMMON STOCK OFFERED. The Common Stock to be delivered pursuant
to the Plan may be authorized but unissued Common Stock or Common Stock
previously issued and outstanding and reacquired by the Company.
3.3 ADJUSTMENT IN CAPITALIZATION. In the event of any change in the
outstanding shares of Common Stock that occurs after the Effective Date by
reason of a Common Stock dividend or split, recapitalization, merger,
consolidation, combination, exchange of shares or other similar corporate
change, the aggregate number of shares of Common Stock subject to a Stock Unit
shall be adjusted appropriately by the Board whose determination shall be
conclusive.
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SECTION IV.
STOCK UNITS
4.1 AWARD OF STOCK UNITS. Effective as of each Last Trading Day, the
Participant will be awarded a number of Stock Units in accordance with the
following formula:
One-half of a Participant's Compensation
Stock Units Awarded = divided by the Fair Market Value of a share of
Common Stock on the Last Trading Day of the
month in which the Compensation is earned
Fractional amounts shall be rounded to the nearest ten thousandth share.
The Company shall maintain an account ("Account") for each Participant which
will reflect the current number of Stock Units maintained on behalf of a
Participant at any time. The Stock Units awarded a Participant pursuant to
this Section 4.1 are in lieu of and replace one-half of the amount of cash
Compensation a Participant would have received prior to the Effective Date.
4.2 DEFERRED COMPENSATION - STOCK UNITS.
(a) Any Participant may irrevocably elect, prior to the beginning of
each Plan Year, but no later than the November 30 preceding the beginning of a
Plan Year, to defer receipt of one-half of the amount of Compensation a
Participant is to earn during the Plan Year which would otherwise have been
payable in cash to the Participant. A new Participant may make an election
with respect to one-half of the amount of Compensation such Participant will
earn during such Participant's first Plan Year of eligibility within 30 days of
becoming a Participant.
(b) The election will be made on a written form called a "Notice of
Election", which shall be signed by the Participant and delivered to the Board.
This election will continue in effect for future years in which the Participant
is eligible to participate unless the Participant submits a written request
revoking or revising his or her election on a new Notice of Election form. Any
revocation or revised election will be applicable only to one-half the amount
of Compensation the Participant may earn in the future and will be effective as
of the first day of the Plan Year specified in such revocation or revised
election, provided that the new, signed Notice of Election form has been
received by the Board by November 30 immediately preceding such specified Plan
Year.
(c) If a Participant has elected to defer receipt of one-half of the
amount of Compensation as set forth in paragraph (a) above, then the one-half
of Compensation deferred will be converted into Stock Units and added to a
Participant's Account effective as of each Last Trading Day in accordance with
the following formula:
C-3
One-half of a Participant's Compensation
Stock Units Awarded = divided by the Fair Market Value of a share of
Common Stock on the Last Trading Day of the
month in which the Compensation is earned
Fractional amounts shall be rounded to the nearest ten thousandth share.
4.3 DIVIDEND - STOCK UNITS.
Upon the payment of any cash dividend by the Company to holders of Common
Stock, a Participant will be awarded a number of Stock Units to be added to
such Participant's Account in an amount equal to the product of (i) the number
of Stock Units held in a Participant's Account on the date the cash dividend
was declared (rounded down to the nearest whole share), multiplied by (ii) a
fraction, where the numerator is the amount of cash dividend paid on one share
of Common Stock and the denominator is the Fair Market Value of a share of
Common Stock on the date the cash dividend was paid by the Company to the
holders of Common Stock.
SECTION V.
DISTRIBUTION OF BENEFITS
5.1 CESSATION FROM BOARD. Within ten (10) days from the date a
Participant ceases to serve on the Board for any reason, the Company shall
deliver a certificate or certificates to such Participant for a number of
shares of Common Stock equal to the total number of Stock Units (rounded up to
the nearest whole Stock Unit) in such Participant's Account as of the date the
Participant's service on the Board ceased.
5.2 TERMINATION OF THE PLAN. If the Plan is terminated pursuant to
Section 6.4, within ten (10) days from the date of such termination of the Plan
("Plan Termination Date"), the Company shall deliver a certificate or
certificates to each Participant for a number of shares of Common Stock equal
to the total number of Stock Units (rounded up to the nearest whole Stock Unit)
in a Participant's Account as of the Plan Termination Date.
5.3 BENEFICIARY. In the event of the death of a Participant before
delivery of a certificate or certificates of Common Stock pursuant to
Sections 5.1 or 5.2 above, the Company shall deliver the shares of Common Stock
to the individual designated as Primary Beneficiary on the latest executed
"Notice of Change of Beneficiary" form on file with the Company within a
reasonable time period, but no later than 180 days after the date of death of
the Participant. If the Primary Beneficiary designated on the latest executed
"Notice of Change of Beneficiary" form is no longer living, the Company shall
deliver the shares of Common Stock to the individual designated as Secondary
Beneficiary on the latest executed "Notice of Change of Beneficiary" form on
file with the Company. If the Second Beneficiary designated on the latest
executed "Notice of Change of Beneficiary" form is no longer living, the
Company shall deliver the shares of Common Stock to the Participant's estate.
If a Participant desires to change the Beneficiary he
C-4
or she has previously designated, the Participant may do so at any time by
submitting a new "Notice of Change of Beneficiary" form to the Board of
Directors.
SECTION VI.
MISCELLANEOUS
6.1 BENEFITS PAYABLE FROM GENERAL ASSETS. Amounts payable hereunder
shall be paid exclusively from the general assets of the Company, and no person
entitled to payment hereunder shall have any claim, right, security interest,
or other interest in any fund, trust, account, insurance contract, or asset of
the Company which may be looked to for such payment. The Company's liability
for the payment of benefits hereunder shall be evidenced only by this Plan. A
Participant shall have only the right of a general unsecured creditor of the
Company with respect to any rights under the Plan. Nothing contained in the
Plan shall constitute a guaranty by the Company or any other entity or person
that the assets of the Company will be sufficient to pay any benefit hereunder.
6.2 NONALIENATION OF BENEFITS. No right or benefit under this Plan shall
be subject to anticipation, alienation, sale, assignment, pledge, encumbrance
or charge, and any attempt to anticipate, alienate, sell, assign, pledge,
encumber or charge the same will be void. No right or benefit hereunder shall
in any manner be liable for or subject to any debts, contracts, liabilities or
torts of the person entitled to such benefits. If any Participant or
Beneficiary hereunder shall become bankrupt or attempt to anticipate, alienate,
assign, sell, pledge, encumber or charge any right of benefit hereunder, or if
any creditor shall attempt to subject the same to a writ of garnishment,
attachment, execution, sequestration or any other form of process or
involuntary lien or seizure, then such right or benefit shall be held by the
Company for the sole benefit of the Participant or the Beneficiary, his or her
spouse, children or other dependents, or any of them in such manner and in such
proportion as the Board shall deem proper, free and clear of the claims of any
other party whatsoever.
6.3 PREREQUISITES TO BENEFITS. No Participant, or any person claiming
through a Participant, shall have any right or interest in the Plan or any
benefits hereunder unless and until all the terms, conditions and provisions of
the Plan that affect such Participant or such other person shall have been
complied with as specified herein. The Participant shall complete such forms
and furnish such information as the Board may require in the administration of
the Plan.
6.4 AMENDMENT OR TERMINATION OF THE PLAN. The Board may amend or
terminate this Plan at any time. Any amendment or termination of this Plan
shall not, however, affect the rights of any Participant to the benefits
provided under Stock Units then standing to the credit of any such Participant
in the Participant's Account at the time of such amendment or termination. The
Board may not, without approval of the stockholders of the Company, amend the
Plan to increase the aggregate number of shares of Common Stock reserved for
the Plan, except as provided in Section 3.3.
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6.5 GOVERNING LAW. The Plan is established under, and the execution,
validity, interpretation and performance of this Plan shall be determined and
governed exclusively by, the laws of the State of Delaware, without reference
to the principles of conflict of laws. Exclusive jurisdiction with respect to
any legal proceeding brought by a Participant, or any party representing
Participant or claiming to have an interest in Participant's benefits under the
Plan, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction. In reaching his or her decision, the arbitrator shall have no
authority to change or modify any provision of this Plan. In addition, any and
all charges which may be made for the cost of the arbitration and the fees and
expenses of the arbitrator shall be borne equally by the parties. Jurisdiction
with respect to any legal proceeding brought by Company, concerning any subject
matter contained in this Plan shall rest in state or federal courts sitting in
the State of New Mexico. Also, Company, at its election, may submit any
dispute it has with Participant or claiming party to arbitration in accordance
with the procedures set forth in this Section.
6.6 SEVERABILITY. All provisions herein are severable and in the event
any one of them shall be held invalid by any court of competent jurisdiction,
the Plan shall be interpreted as if such invalid provisions was not contained
herein.
6.7 HEADINGS. The headings of the sections of this Plan are inserted for
convenience only and shall not be deemed to constitute a part of this Plan.
6.8 NON-WAIVER. Failure on the part of any party in any one or more
instances to enforce any of its rights which arise in connection with this
Plan or to insist upon the strict performance of any of its terms, conditions,
or covenants of this Plan shall not be construed as a waiver or a
relinquishment for the future of any such rights, terms, conditions, or
covenants. No waiver of any condition of this Plan shall be valid unless it is
in writing.
6.9 PLAN ON FILE. The Company shall place this Plan on file in the
office of its principal place of business.
6.10 NOTICES. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested.
Notices delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of three (3) days after mailing.
Approved: Date:
---------------------- ----------------------
C-6
REVOCABLE PROXY
ACCESS ANYTIME BANCORP, INC.
The Annual Meeting of Shareholders of Access Anytime Bancorp, Inc.
will be held at Clovis Community College's Town Hall, 417 Schepps
Boulevard, Clovis, New Mexico 88101, on Friday, May 30, 1997, at 9:00
a.m., local time.
A VOTE FOR THE FOLLOWING PROPOSALS IS RECOMMENDED BY THE
BOARD OF DIRECTORS
1. Election of Directors (James Clark, Everett Frost,
Charles Guthals, Cornelius Higgins, Allan Moorhead,.
David Ottensmeyer)
Mark one: _____ FOR all nominees listed above
_____ FOR all nominees listed above except
____________________________________.
_____ WITHHOLD AUTHORITY to vote for all
nominees listed above.
2. Approval of the amendment to the Certificate of Incorporation
relating to liability of directors.
/ / FOR / / AGAINST / / ABSTAIN
P _________________________________________
R Signature
O
X _________________________________________
Y Signature
Dated:_______________________________, 1997
-------------------------------------------
PLEASE MARK, SIGN, DATE AND RETURN
THE PROXY CARD PROMPTLY, USING THE
ENCLOSED ENVELOPE
-------------------------------------------
3. Approval of the amendment to the Certificate of Incorporation
relating to the issuance of stock to directors, officers and
controlling persons.
/ / FOR / / AGAINST / / ABSTAIN
4. Approval of the "fair price" amendment to the Certificate of
Incorporation.
/ / FOR / / AGAINST / / ABSTAIN
5. Approval of the 1997 Stock Option and Incentive Plan.
/ / FOR / / AGAINST / / ABSTAIN
6. Approval of the Non-Employee Director Retainer Plan.
/ / FOR / / AGAINST / / ABSTAIN
7. Selection of Robinson Burdette Martin & Cowan, L.L.P. as
independent public accountants for the current year.
/ / FOR / / AGAINST / / ABSTAIN
8. In their discretion, the proxies are authorized to vote
upon such other matters as may properly come before
this meeting, or any adjournment or adjournments thereof.
ACCESS ANYTIME BANCORP, INC.
Proxy Solicited on Behalf of the Board of Directors
PROXY
The undersigned does hereby constitute and appoint Norman R. Corzine and
Kenneth J. Huey, Jr., and each of them, true and lawful attorney-in-fact
and proxy for the undersigned, with full power of substitution to
represent and vote the Common Stock of the undersigned at the Annual
Meeting of Shareholders of Access Anytime Bancorp, Inc. to be held at
the Clovis Community College's Town Hall, 417 Schepps Boulevard, Clovis,
P New Mexico, on Friday, May 30, 1997, at 9:00 a.m., local time and at any
R adjournments thereof on all matters coming before said meeting.
O
X
Y This proxy, when properly executed, will be voted in the manner directed
herein by the undersigned shareholder. IF NO DIRECTION IS MADE, THIS
PROXY WILL BE VOTED FOR PROPOSALS 1, 2, 3, 4, 5, 6 AND 7.
Please date and sign exactly as name appears hereon. When signing as
attorney, executor, administrator, trustee, guardian, etc., give full
title. If stock is held jointly, each owner should sign. If stock is
owned by a corporation, please sign full corporate name by duly
authorized officer. If a partnership, please sign in partnership name
by authorized person.