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MSB FINANCIAL, MHC
MSB FINANCIAL CORP.
MILLINGTON SAVINGS BANK
Millington, New Jersey
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PLAN OF STOCK ISSUANCE
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Adopted by the Board of Directors
on
July 17, 2006
and subsequently amended
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PLAN OF STOCK ISSUANCE
MSB FINANCIAL, MHC
MSB FINANCIAL CORP.
MILLINGTON SAVINGS BANK
TABLE OF CONTENTS
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PAGE
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1. Introduction.............................................................................. 1
2. Definitions............................................................................... 1
3. Conditions to Completion of Stock Offering................................................ 4
4. Stock Offering Documents.................................................................. 4
5. Stock Offering............................................................................ 5
6. Subscription Rights of Eligible Account Holders
(First Priority)........................................................................ 6
7. Subscription Rights of Employee Plans (Second Priority)................................... 6
8. Supplemental Eligible Account Holders (Third Priority).................................... 6
9. Other Depositors (Fourth Priority)........................................................ 7
10. Community Offering........................................................................ 8
11. Syndicated Community Offering............................................................. 8
12. Limitation on Purchases................................................................... 9
13. Payment for Common Stock.................................................................. 10
14. Manner of Exercising Subscription Rights Through Order Forms.............................. 11
15. Undelivered, Defective or Late Order Forms:
Insufficient Payment.................................................................... 12
16. Restrictions on Resale or Subsequent Disposition.......................................... 12
17. Charter and Bylaws of the Mutual Holding Company, the Stock Holding Company and the Bank.. 13
18. Payment of Dividends and Repurchase of Stock.............................................. 13
19. Residents of Foreign Countries and Certain States......................................... 13
20. Registration and Market Making............................................................ 13
21. Expenses of Offering...................................................................... 13
22. Amendment or Termination of Plan of Stock Issuance........................................ 13
23. Miscellaneous............................................................................. 14
PLAN OF STOCK ISSUANCE
1. INTRODUCTION
In February 2004, pursuant to a Plan of Reorganization from a New
Jersey State Mutual Savings Bank to a Federal Mutual Holding Company, Millington
Savings Bank (the "Bank") reorganized into the mutual holding company form of
organization without conducting a minority stock offering and is now a New
Jersey Stock Savings Bank wholly owned by MSB Financial Corp. (the "Stock
Holding Company"), a federally chartered mutual holding company subsidiary,
which is wholly owned by MSB Financial, MHC (the "Mutual Holding Company"), a
federally chartered mutual holding company. On July 17, 2006, the Boards of
Directors of the Bank, the Stock Holding Company and the Mutual Holding Company,
by at least two-thirds votes, resolved to adopt this Plan of Stock Issuance,
pursuant to which the Stock Holding Company proposes to conduct a stock offering
of up to but less than 50% of the Stock Holding Company's total outstanding
common stock.
In adopting this Plan, the Board of Directors has determined that the
Stock Offering is advisable and in the best interest of the Bank, the Stock
Holding Company, the Mutual Holding Company and the Bank's depositors. The Stock
Offering will enable the Stock Holding Company and the Bank to increase capital
through the issuance of stock without undertaking a full conversion from the
mutual to the stock form of organization. The Stock Offering will not foreclose
the opportunity to effect a conversion of the Mutual Holding Company to a stock
form of organization at a later date. The Stock Offering will significantly
increase capital and enable the Bank to further grow through internal expansion,
the possible acquisition of branch offices or financial institutions and
possible diversification into other related financial service activities,
enhancing the Bank's ability to render services to the public. The mutual
holding company structure also will allow the Bank to minimize
over-capitalization by providing the flexibility to raise capital through the
issuance of stock in a manner designed to meet the Bank's growth needs, rather
than in a single stock offering as required in a standard mutual-to-stock
conversion.
Pursuant to Section 10(o) of the Home Owners' Loan Act, as amended, 12
U.S.C. 1467a(o), the Stock Offering will be accomplished in accordance with the
procedures contained in this Plan, the Rules and Regulations of the Office of
Thrift Supervision (the "OTS") and the New Jersey Department of Banking and
Insurance (the "DOBI"), and as otherwise may be required by the OTS and the
DOBI.
2. DEFINITIONS
As used in this Plan, the terms set forth below have the following
meanings:
Account Holder: any Person holding a Savings Account in the Bank.
Acting in Concert: (i) knowing participation in a joint activity or
interdependent conscious parallel action towards a common goal whether
or not pursuant to an express agreement; or (ii) a combination or
pooling of voting or other interests in the securities of an issuer for
a common purpose pursuant to any contract, understanding, relationship,
agreement or other arrangement, whether written or otherwise. A Person
which acts in concert with another Person ("other party") shall also be
deemed to be acting in concert with any Person who is also acting in
concert with that other party, except that any Tax-Qualified Employee
Stock Benefit Plan will not be deemed to be acting in concert with its
trustee or a Person who serves in a similar capacity solely for the
purpose of determining whether stock held by the trustee and stock held
by the plan will be aggregated. Persons who have the same address on an
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account or stock order form or who have a joint account relationship
may be considered to be acting in concert.
Affiliate: a Person who, directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control
with another Person.
Associate: when used to indicate a relationship with any Person, means
(i) A corporation or organization (other than the Stock Holding
Company, the Bank or any of their majority-owned subsidiaries) if such
Person is a senior officer or partner, or beneficially owns, directly
or indirectly, 10 percent or more of any class of equity securities of
the corporation or organization; (ii) a trust or other estate if the
Person has a substantial beneficial interest in the trust or estate or
is a trustee or fiduciary of the trust or estate; provided, however
that a Person who has a substantial beneficial interest in a
Tax-Qualified or non-tax-qualified Employee Stock Benefit Plan of the
Bank or the Stock Holding Company, or who is a trustee or a fiduciary
of such plan, is not an associate of such plan and provided further
that for purposes of aggregating total shares that may be held by
Officers, Directors and their Associates, a Tax-Qualified Employee
Stock Benefit Plan of the Bank or the Stock Holding Company is not an
Associate of any Person; (iii) Any Person who is related by blood or
marriage to such Person and (i) who lives in the same home as the
Person; or (ii) who is a Director or Officer.
Bank: Millington Savings Bank, a New Jersey chartered stock savings
bank.
Common Stock: the common stock, par value $0.10, of the Stock Holding
Company.
Community Offering: the offering of the Common Stock for sale to
certain members of the general public directly by the Stock Holding
Company.
Director: a member of the Board of Directors of the Bank and, where
applicable, a member of the Board of Directors of the Mutual Holding
Company and the Stock Holding Company.
DOBI: the New Jersey Department of Banking and Insurance.
Effective Date: date of completion of the Stock Offering in accordance
with this Plan and the Rules and Regulations of the OTS.
Eligible Account Holder: any Person holding a Qualifying Deposit in a
Savings Account at the Bank on the Eligibility Record Date. Only the
name(s) of the Person(s) listed on the account as of the Eligibility
Record Date (or a successor entity or estate) is an Eligible Account
Holder. Any Person(s) added to a Savings Account after the Eligibility
Record Date is not an Eligible Account Holder.
Eligibility Record Date: the date for determining Eligible Account
Holders in the Bank as of the close of business on June 30, 2005.
Employee: a Person employed by the Bank at the date of the Stock
Offering.
Employee Plans: the Tax-Qualified Employee Stock Benefit Plans,
including the Employee Stock Ownership Plan, approved by the Board of
Directors of the Bank or Stock Holding Company.
Independent Appraiser: an appraiser retained to prepare an appraisal
of the pro forma market value of the Common Stock.
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Local Community: the counties in which the Bank has an office and the
counties in the Bank's Community Reinvestment Act assessment area.
Majority Interest: greater than fifty percent (50%) of the combined
voting power or value of all classes of stock of the Stock Holding
Company.
Minority Stock Offering: one or more offerings of up to but less than
50% in the aggregate of the outstanding Common Stock of the Stock
Holding Company to Persons other than the Mutual Holding Company.
Mutual Holding Company: MSB Financial, MHC, a federally chartered
mutual holding company.
Officer: an executive officer of the Mutual Holding Company, Stock
Holding Company or Bank, which includes the President, Chief Executive
Officer, any Executive Vice President or Senior Vice President in
charge of a principal business unit, division or function, and any
other individual who performs significant policy making functions.
Order Form: any form together with attached cover letter, sent by the
Bank to any Person containing among other things a description of the
alternatives available to such Person under this Plan and by which any
such Person may make elections regarding subscriptions for Common Stock
in the Subscription and Community Offerings.
OTS: the Office of Thrift Supervision or any successor agency.
Participants: the Eligible Account Holders, Employee Plans,
Supplemental Eligible Account Holders and Other Depositors.
Person: an individual, a corporation, a partnership, an association, a
joint venture, a joint-stock company, a limited liability company, a
trust, an unincorporated organization, a government, a political
subdivision of a government or any other entity.
Plan: this Plan of Stock Issuance as it exists on the date hereof and
as it may hereafter be amended in accordance with its terms.
Purchase Price: the per share price at which the Common Stock will be
sold in accordance with the terms hereof.
Qualifying Deposit: the balance of each Savings Account of $50 or more
in the Bank at the close of business on the Eligibility Record Date or
Supplemental Eligibility Record Date. Savings Accounts with total
deposit balances of less than $50 shall not constitute a Qualifying
Deposit.
Savings Account: any withdrawable account as defined in the Rules and
Regulations of the OTS, including certificates of deposit and demand
accounts as defined in the Rules and Regulations of the OTS.
SEC: the United States Securities and Exchange Commission.
Stock Holding Company: MSB Financial Corp., a federally chartered
mutual holding company subsidiary.
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Stock Offering: the offering of the Common Stock to Persons other than
the Mutual Holding Company in a Subscription Offering, and to the
extent shares remain available, in a Community Offering or otherwise.
Subscription Offering: the offering of the Common Stock for purchase
through Order Forms to Participants.
Supplemental Eligibility Record Date: the close of business on the
last day of the calendar quarter preceding the approval of this Plan
by the OTS.
Supplemental Eligible Account Holder: a holder of a Qualifying Deposit
in the Bank (other than an Officer or Director or their Associates) at
the close of business on the Supplemental Eligibility Record Date.
Syndicated Community Offering: the offering of the Common Stock for
sale through a syndicate of registered brokers or dealers.
Tax-Qualified Employee Stock Benefit Plan: any defined benefit or
defined contribution plan, such as an employee stock ownership plan,
stock bonus plan, profit-sharing plan or other plan, which, with its
related trust, meets the requirements to be "qualified" under Section
401 of the Internal Revenue Code.
3. CONDITIONS TO COMPLETION OF STOCK OFFERING
Completion of the Stock Offering is expressly conditioned upon the
following:
1. This Plan is approved by at least two-thirds of the Boards of
Directors;
2. An Application for Approval of Minority Stock Issuance is
filed with and approved by the OTS and copies of the
Application are provided to the DOBI and the Federal Deposit
Insurance Corporation;
3. Receipt of a favorable ruling of the Internal Revenue Service
or an opinion of the Bank's tax advisor with respect to
federal taxation to the effect that the Stock Offering will
not be a taxable event to the Mutual Holding Company, the
Stock Holding Company, the Bank or the Bank's depositors; and
4. Receipt of either a private letter ruling of the New Jersey
Department of Revenue or an opinion of the Bank's tax advisor
with respect to state taxation to the effect that completion
of the Stock Offering will not be a taxable event to the
Mutual Holding Company, the Stock Holding Company, the Bank or
to the Bank's depositors.
5. The stock offering prospectus of the Stock Holding Company is
declared effective by the SEC.
4. STOCK OFFERING DOCUMENTS
The Stock Holding Company and the Bank intend to commence a Minority
Stock Offering within ten (10) days of the satisfaction of all of the conditions
of Section 3 hereof. The Stock Holding Company and the Bank shall not distribute
the final prospectus until such prospectus has been approved for use by the OTS
and declared effective by the SEC.
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5. STOCK OFFERING
A. Number of Shares. The number of shares and price per share of Common
Stock to be offered pursuant to this Plan shall be initially determined by the
Boards of Directors of the Stock Holding Company and the Bank in conjunction
with the determination of the Independent Appraiser. The number of shares to be
issued will be on a minimum-maximum basis within a range determined by the Board
of Directors (the "Offering Range") and may be adjusted at or immediately
subsequent to the completion of the Stock Offering without notifying
Participants and without a resolicitation of subscriptions. The number of shares
to be offered or Offering Range may be subsequently adjusted at or immediately
subsequent to the completion of the Stock Offering for any reason, including a
change in the appraisal. The total number of shares of Common Stock that may be
issued to Persons other than the Mutual Holding Company at the close of the
Stock Offering must be less than 50% of the issued and outstanding shares of the
Stock Holding Company.
B. Independent Evaluation and Purchase Price of Shares. All shares of
Common Stock sold in the Stock Offering shall be sold at a uniform price per
share, referred to herein as the "Purchase Price." The Purchase Price and number
of shares shall be determined by the Board of Directors of the Stock Holding
Company and the Bank immediately prior to the simultaneous completion of all
such sales contemplated by this Plan on the basis of the estimated pro forma
market value of the Stock Holding Company and the Bank and the fact that the
shares offered represent a minority interest in the Stock Holding Company (the
"Independent Evaluation"). Therefore, the Independent Evaluation and the
resulting Purchase Price may reflect a discount to the valuation applied to a
standard mutual-to-stock conversion. The aggregate Purchase Price for the Common
Stock will not be inconsistent with such market value of the Stock Holding
Company and the Bank. The Independent Evaluation of the Stock Holding Company
and the Bank shall be determined for such purpose by an Independent Appraiser on
the basis of such appropriate factors as are not inconsistent with OTS
regulations. The total amount of Common Stock that may be issued to Persons
other than the Mutual Holding Company must be less than 50% of the outstanding
stock of the Stock Holding Company. The Common Stock to be issued in the Stock
Offering shall be fully paid and nonassessable.
C. Minority Ownership Percentage. Based upon the Independent
Appraiser's valuation of the Stock Holding Company and the Bank as updated prior
to the commencement of the Stock Offering, the Board of Directors will establish
the minimum and maximum ownership percentage applicable to the Stock Offering.
The final minority ownership percentages or interest will be determined by the
Stock Holding Company and the Bank as follows: (a) the product of (x) the total
number of shares of Common Stock to be issued and sold and (y) the Purchase
Price shall be by divided by (b) the estimated aggregate pro forma market value
of the Stock Holding Company and the Bank immediately after the Stock Offering
as determined by the Independent Appraiser, expressed in terms of a specific
aggregate dollar amount upon the closing of the Stock Offering or sale of all
the Common Stock.
D. Method of Offering Shares. Subject to the discretion of the Stock
Holding Company and the Bank and the limitations set forth in Section 12, the
opportunity to purchase Common Stock will be given, at no cost, in accordance
with Sections 6, 7, 8, 9, 10 and 11 hereof and pursuant to priorities
established by the Board of Directors in accordance with this Plan. The Stock
Offering shall be conducted on a minimum-maximum basis, setting forth the
minimum and maximum amount of stock that must be offered and sold before
closing. The Stock Holding Company and the Bank may elect to pay fees on either
a fixed fee or commission basis or combination thereof to an investment bank
firm which assists it in the sale of the Common Stock in the Stock Offering.
The Stock Holding Company and the Bank may also elect to offer to pay
fees on a per share basis to brokers who assist purchasers in determining to
purchase shares in the Syndicated Community Offering and whose broker's name
appears on the purchaser's Order Form.
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6. SUBSCRIPTION RIGHTS OF ELIGIBLE ACCOUNT HOLDERS (FIRST PRIORITY)
A. Each Eligible Account Holder shall receive, without payment,
nontransferable subscription rights to subscribe for shares of Common Stock
equal to the greater of: (i) the maximum established for the Community Offering;
(ii) one-tenth of one percent of the Conversion Stock offered; or (iii) 15 times
the product (rounded down to the next whole number) obtained by multiplying the
total number of shares of Common Stock offered by a fraction of which the
numerator is the amount of the Qualifying Deposit of such Eligible Account
Holder and the denominator is the total amount of Qualifying Deposits of all
Eligible Account Holders but in no event greater than the maximum purchase
limitation specified in Section 12 hereof. All such purchases are subject to the
maximum and minimum purchase limitations specified in Section 12 and are
exclusive of an increase in the total number of shares issued due to an increase
in the maximum of the Offering Range of up to 15%. Only a Person(s) with a
Qualifying Deposit as of the Eligibility Record Date (or a successor entity or
estate) shall receive subscription rights. Any Person(s) added to a Savings
Account after the Eligibility Record Date is not an Eligible Account Holder.
B. In the event that Eligible Account Holders exercise Subscription
Rights for a number of shares of Common Stock in excess of the total number of
such shares eligible for subscription, the shares of Common Stock shall be
allocated among the subscribing Eligible Account Holders so as to permit each
subscribing Eligible Account Holder, to the extent possible, to purchase a
number of shares sufficient to make his or her total allocation of Common Stock
equal to the lesser of 100 shares or the number of shares subscribed for by the
Eligible Account Holder. Any shares remaining after that allocation will be
allocated among the subscribing Eligible Account Holders whose subscriptions
remain unsatisfied in the proportion that the amount of the Qualifying Deposit
of each Eligible Account Holder whose subscription remains unsatisfied bears to
the total amount of the Qualifying Deposits of all Eligible Account Holders
whose subscriptions remain unsatisfied. If the amount so allocated exceeds the
amount subscribed for by any one or more Eligible Account Holders, the excess
shall be reallocated (one or more times as necessary) among those Eligible
Account Holders whose subscriptions are still not fully satisfied on the same
principle until all available shares have been allocated or all subscriptions
satisfied.
C. Subscription rights as Eligible Account Holders received by
Directors and Officers and their Associates which are based on deposits made by
such Persons during the twelve (12) months preceding the Eligibility Record Date
shall be subordinated to the Subscription Rights of all other Eligible Account
Holders.
7. SUBSCRIPTION RIGHTS OF EMPLOYEE PLANS (SECOND PRIORITY)
Subject to the availability of sufficient shares after filling
subscription orders of Eligible Account Holders under Section 6, the Employee
Plans shall receive without payment nontransferable subscription rights to
purchase in the Subscription Offering the number of shares of Common Stock
requested by such Plans, subject to the purchase limitations set forth in
Section 12. The Employee Plans may, in whole or in part, fill their orders
through open market purchases subsequent to the closing of the Stock Offering.
The Employee Plans shall not be deemed to be Associates of or Acting in
Concert with any Director or Officer.
8. SUPPLEMENTAL ELIGIBLE ACCOUNT HOLDERS (THIRD PRIORITY)
A. In the event that the Eligibility Record Date is more than 15 months
prior to the date of the latest amendment to the application filed prior to OTS
approval, then, and only in that event, each Supplemental Eligible Account
Holder shall receive, without payment, nontransferable subscription rights
entitling such Supplemental Eligible Account Holder to purchase that number of
shares of Common Stock which is equal to the greater of: (i) the maximum
purchase limitation established for the Community Offering;
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(ii) one-tenth of 1% of the Common Stock Offered; and (iii) or 15 times the
product (rounded down to the next whole number) obtained by multiplying the
total number of shares of Common Stock to be issued by a fraction of which the
numerator is the amount of the Qualifying Deposit of the Supplemental Eligible
Account Holder and the denominator is the total amount of the Qualifying
Deposits of all Supplemental Eligible Account Holders. All such purchases are
subject to the maximum and minimum purchase limitations in Section 12 and are
exclusive of an increase in the total number of shares issued due to an increase
in the maximum of the Offering Range of up to 15%. Any Person(s) added to a
Savings Account after the Supplemental Eligibility Record Date is not a
Supplemental Account Holder.
B. Subscription rights received pursuant to this Category shall be
subordinated to the subscription rights received by Eligible Account Holders and
by the Employee Plans.
C. Any subscription rights to purchase shares of Common Stock received
by an Eligible Account Holder in accordance with Section 6 shall reduce to the
extent thereof the subscription rights to be distributed pursuant to this
Section.
D. In the event of an oversubscription for shares of Common Stock
pursuant to this Section, shares of Common Stock shall be allocated among the
subscribing Supplemental Eligible Account Holders as follows:
(1) Shares of Common Stock shall be allocated so as to permit
each such Supplemental Eligible Account Holder, to the extent possible,
to purchase a number of shares of Common Stock sufficient to make his
total allocation (including the number of shares of Common Stock, if
any, allocated in accordance with Section 6) equal to 100 shares of
Common Stock or the total amount of his subscription, whichever is
less.
(2) Any shares of Common Stock not allocated in accordance
with subparagraph (1) above shall be allocated among the subscribing
Supplemental Eligible Account Holders on an equitable basis, related to
the amounts of their respective Qualifying Deposits as compared to the
total Qualifying Deposits of all subscribing Supplemental Eligible
Account Holders.
9. SUBSCRIPTION RIGHTS OF OTHER DEPOSITORS (FOURTH PRIORITY)
A. Each Other Member shall receive, without payment, nontransferable
subscription rights to subscribe for shares of Common Stock in an amount equal
to the greater of the maximum purchase limitation established for the Community
Offering or one-tenth of one percent of the Common Stock offered, subject to the
maximum and minimum purchase limitations specified in Section 13 and exclusive
of an increase in the total number of shares issued due to an increase in the
maximum of the Offering Range of up to 15%, which will be allocated only after
first allocating to Eligible Account Holders, the Employee Plans and
Supplemental Eligible Account Holders all shares of Common Stock subscribed for
pursuant to Sections 6, 7 and 8 above.
B. In the event that such Other Depositors subscribe for a number of
shares of Common Stock which, when added to the shares of Common Stock
subscribed for by the Eligible Account Holders, the Employee Plans and the
Supplemental Eligible Account Holders is in excess of the total number of shares
of Common Stock being issued, the subscriptions of such Other Depositors will be
allocated among the subscribing Other Depositors so as to permit each
subscribing Other Member, to the extent possible, to purchase a number of shares
sufficient to make his total allocation of Common Stock equal to the lesser of
100 shares or the number of shares subscribed for by the Other Member. Any
shares remaining will be allocated among the subscribing Other Depositors whose
subscriptions remain unsatisfied on a 100 shares (or
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whatever less amount is available) per order basis until all orders have been
filled or the remaining shares have been allocated.
10. COMMUNITY OFFERING
If less than the total number of shares of Common Stock to be
subscribed for in the Stock Offering are sold in the Subscription Offering,
shares remaining may be made available for purchase in the Community Offering to
certain members of the general public.
The maximum amount of Common Stock that any Person may purchase in the
Community Offering, subject to the further limitations of Section 12 hereof (and
exclusive of an increase in the total number of shares issued due to an increase
in the maximum of the Offering Range of up to 15%), shall not exceed $200,000.
The maximum amount may be decreased or increased to up to 5% of the total
offering of shares in the Stock Offering, subject to any required regulatory
approval but without notice to Participants, subject to the preferences set
forth in Section 12 hereof. In the Community Offering, if any, shares will be
available for purchase by certain members of the general public, and a
preference may be given to natural persons and trusts of natural persons
residing in the Local Community and second, to natural persons and trusts of
natural persons residing in the State of New Jersey ("Community Purchasers").
If the Persons whose orders would otherwise be accepted, subscribe for
more shares than are available for purchase, the shares available to them will
be allocated among those Persons submitting orders in the Community Offering up
to a maximum of 2% of the Common Stock offered in the Stock Offering and
thereafter remaining shares shall be allocated on an equal number of shares
basis per order until all orders have been filled. The Stock Holding Company and
the Bank may establish all terms and conditions of such offer in order to
allocate shares in an equitable manner as determined by the Board of Directors.
The Community Offering, if any, may commence simultaneously with,
during or subsequent to the completion of the Subscription Offering and if
commenced simultaneously with or during the Subscription Offering the Community
Offering may be limited to Community Purchasers. The Community Offering must be
completed within 45 days after the completion of the Subscription Offering
unless otherwise extended by the OTS.
The Bank and the Stock Holding Company, in their absolute discretion,
reserve the right to reject any or all orders in whole or in part which are
received in the Community Offering, at the time of receipt or as soon as
practicable following the completion of the Community Offering.
11. SYNDICATED COMMUNITY OFFERING
Any shares of Common Stock not sold in the Subscription Offering or in
the Community Offering, if any, may then be sold through a syndicate of
registered brokers or dealers at the Purchase Price in a Syndicated Community
Offering, subject to such terms, conditions and procedures as may be determined
by the Board of Directors of the Bank and the Stock Holding Company, in a manner
that will achieve a wide distribution of the Common Stock and subject to the
right of the Bank and the Stock Holding Company, in their absolute discretion,
to accept or reject in whole or in part all subscriptions in the Syndicated
Community Offering. In the Syndicated Community Offering, if any, any Person
together with any Associate or group of Persons Acting in Concert may purchase
up to the maximum purchase limitation established for the Community Offering,
subject to the maximum and minimum purchase limitations specified in Section 12
and exclusive of an increase in the total number of shares issued due to an
increase in the maximum of the Offering Range of up to 15%. Shares purchased by
any Person together with any Associate or group of Persons Acting in Concert
pursuant to Section 10 shall be counted toward meeting the maximum purchase
limitation specified for this Section. The Bank may commence the Syndicated
Community Offering at any time after the commencement
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of the Subscription Offering. It is expected that the Syndicated Community
Offering, if any, will commence just prior to, or as soon as practicable after,
the termination of the Subscription Offering. The Syndicated Community Offering
shall be completed within 45 days after the termination of the Subscription
Offering, unless such period is extended as provided above.
12. LIMITATION ON PURCHASES
The following limitations shall apply to all purchases of shares of
Common Stock in the Stock Offering:
A. The maximum number of shares of Common Stock which may be purchased
in the Subscription Offering by any Person, or Persons through a single account,
in the First Priority and Third Priority shall not exceed $200,000 divided by
the Purchase Price.
B. The number of shares of Common Stock which may be purchased by any
Person or group of Persons Acting in Concert in the Community and/or Syndicated
Community Offering shall not exceed $200,000 divided by the Purchase Price.
C. The maximum number of shares of Common Stock which may be subscribed
for or purchased in all categories in the Stock Offering by any Person together
with any Associate or group of Persons Acting in Concert shall not exceed
$250,000 divided by the Purchase Price per share, except for Employee Plans,
which in the aggregate may subscribe for up to 8% of the shares of Common Stock
issued in the Stock Offering to Persons other than the Mutual Holding Company.
D. The maximum number of shares of Common Stock which may be purchased
in all categories in the Stock Offering by Officers and Directors and their
Associates in the aggregate shall not exceed 30% of the total number of shares
of Common Stock issued in the Stock Offering.
E. A minimum of 25 shares of Common Stock must be purchased by each
Person purchasing shares in the Stock Offering to the extent those shares are
available; provided, however, that the minimum number of shares requirement will
not apply if the number of shares of Common Stock purchased times the price per
share exceeds $500.
F. If the number of shares of Common Stock otherwise allocable pursuant
to Sections 6 through 11, inclusive, to any Person or that Person's Associates
would be in excess of the maximum number of shares permitted as set forth above,
the number of shares of Common Stock allocated to each such Person shall be
reduced to the lowest limitation applicable to that Person, and then the number
of shares allocated to each group consisting of a Person and that Person's
Associates shall be reduced so that the aggregate allocation to that Person and
his Associates complies with the above maximums, and such maximum number of
shares shall be reallocated among that Person and his Associates as they may
agree, or in the absence of an agreement, in proportion to the shares subscribed
by each (after first applying the maximums applicable to each Person,
separately).
G. Depending upon market or financial conditions, the Board of
Directors of the Mutual Holding Company, the Stock Holding Company and the Bank,
with the approval of the Office of Thrift Supervision but without notification
to Participants, may decrease or increase the purchase and ownership
limitations. If a purchase limitation is increased, subscribers in the
subscription offering who ordered the maximum amount will be, and some other
large subscribers who through their subscriptions evidence a desire to purchase
the maximum allowable number of shares, in the Stock Holding Company's sole
discretion, may be given the opportunity to increase their subscriptions up to
the then applicable limit. The effect of this type of resolicitation will be an
increase in the number of shares owned by subscribers who increase their
subscriptions.
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H. In the event of an increase in the total number of shares offered in
the Stock Offering due to an increase in the maximum of the Offering Range of up
to 15% (the "Adjusted Maximum") the additional shares will be used in the
following order of priority: (i) to fill the Employees Plan's subscription
(unless the Employee Plans elect to purchase stock subsequent to the Stock
Offering in the open market); (ii) in the event that there is an
oversubscription at the Eligible Account Holder level, to fill unfilled
subscriptions of Eligible Account Holders exclusive of the Adjusted Maximum
according to Section 6; (iii) in the event that there is an oversubscription at
the Supplemental Eligible Account Holder level, to fill unfilled subscriptions
of Supplemental Eligible Account Holders exclusive of the Adjusted Maximum
according to Section 8; (iv) in the event that there is an oversubscription at
the Other Depositors level, to fill unfilled subscriptions of Other Depositors
exclusive of the Adjusted Maximum according to Section 9; and (v) to fill
unfilled Subscriptions in the Community Offering exclusive of the Adjusted
Maximum.
I. Each Person purchasing Common Stock in the Stock Offering shall be
deemed to confirm that such purchase does not conflict with the above purchase
limitations contained herein.
J. For a period of three years following the Stock Offering, no
Officer, Director or their Associates shall purchase, without the prior written
approval of the OTS, any outstanding shares of the Common Stock, except from a
registered broker-dealer. This provision shall not apply to negotiated
transactions involving more than one percent of the outstanding shares of the
Common Stock, the exercise of any options pursuant to a stock option plan or
purchases of the Common Stock made by or held by any Tax-Qualified Employee
Stock Benefit Plan or Non-Tax Qualified Employee Stock Benefit Plan of the Stock
Bank or Stock Holding Company (including the Employee Plans) which may be
attributable to any Officer or Director. As used herein, the term "negotiated
transaction" means a transaction in which the securities are offered and the
terms and arrangements relating to any sale are arrived at through direct
communications between the seller or any Person acting on its behalf and the
purchaser or his investment representative. The term "investment representative"
shall mean a professional investment advisor acting as agent for the purchaser
and independent of the seller and not acting on behalf of the seller in
connection with the transaction.
13. PAYMENT FOR COMMON STOCK
All payments for Common Stock subscribed for in the Subscription and
Community Offering (if any), must be delivered in full to the Bank, together
with a properly completed and executed Order Form, on or prior to the expiration
date specified on the Order Form or purchase order, as the case may be, unless
such date is extended by the Bank; provided, however, that if the Employee Plans
subscribe for shares during the Subscription Offering, the Employee Plans will
not be required to pay for the shares at the time they subscribe but rather may
pay for such shares of Common Stock upon consummation of the Stock Offering. The
Bank may make scheduled discretionary contributions to Employee Plans provided
such contributions do not cause the Bank to fail to meet its regulatory capital
requirement.
Notwithstanding the foregoing, the Bank and the Stock Holding Company
shall have the right, in their sole discretion, to permit institutional
investors to submit contractually irrevocable orders in the Community
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Offering (if any), and to thereafter submit payment for the Common Stock for
which they are subscribing in the Community Offering (if any), at any time prior
to the completion of the Stock Offering.
Payment for Common Stock subscribed for shall be made by cash (if
delivered in person), check or money order. Funds received with orders will be
held in a deposit account established at the Bank for that sole purpose. The
Bank and the Stock Holding Company may decide during the offering to also hold
funds received with orders in a deposit account at another insured depository
institution. Interest will be paid at not less than the Bank's annual passbook
rate on payments for Common Stock received by cash, money order or check. Such
interest will be paid from the date payment is received until consummation or
termination of the Stock Offering. If for any reason the Stock Offering is not
consummated, all payments made by subscribers in the Stock Offering will be
refunded to them with interest. In case of amounts authorized for withdrawal
from Savings Accounts, refunds will be made by canceling the authorization for
withdrawal.
Subscribers in the Subscription and Community Offering (if any) may pay
for the shares subscribed for by authorizing the Bank on the Order Form to make
a withdrawal from the subscriber's Savings Account at the Bank in an amount
equal to the purchase price of such shares. Such authorized withdrawal, whether
from a savings passbook or certificate account, shall be without penalty as to
premature withdrawal. If the authorized withdrawal is from a certificate
account, and the remaining balance does not meet the applicable minimum balance
requirement, the certificate shall be canceled at the time of withdrawal,
without penalty, and the remaining balance will earn interest at the passbook
rate. Funds for which a withdrawal is authorized will remain in the subscriber's
Savings Account but may not be used by the subscriber until the Common Stock has
been sold or the 45-day period (or such longer period as may be approved by the
OTS) following the Subscription Offering has expired, whichever occurs first.
Thereafter, the withdrawal will be given effect only to the extent necessary to
satisfy the subscription (to the extent it can be filled) at the Purchase Price
per share. Interest will continue to be earned on any amounts authorized for
withdrawal until such withdrawal is given effect.
The Bank is prohibited by regulation from knowingly making any loans or
granting any lines of credit for the purchase of stock in the Stock Offering.
14. MANNER OF EXERCISING SUBSCRIPTION RIGHTS THROUGH ORDER FORMS
As soon as practicable after the prospectus prepared by the Bank and
the Stock Holding Company has been approved by the OTS, received the
non-objection of the DOBI, and declared effective by the SEC, Order Forms will
be distributed to the Participants at their last known addresses appearing on
the records of the Bank for the purpose of subscribing to shares of Common Stock
in the Subscription Offering and may be made available for use in the Community
Offering. Notwithstanding the foregoing, the Bank may elect to send Order Forms
only to those Persons who request them after such notice as is approved by the
OTS and is adequate to apprise the Participants of the pendency of the
Subscription Offering has been given.
Each Order Form will be preceded or accompanied by a prospectus. Each
Order Form will contain, among other things, the following:
A. A specified date by which all Order Forms must be received by the
Bank, which date shall be not less than twenty (20), nor more than forty-five
(45) days, following the date on which the Order Forms are mailed by the Bank,
and which date will constitute the termination of the Subscription Offering;
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B. The purchase price per share for shares of Common Stock to be sold
in the Subscription and Community Offering (if any);
C. A description of the minimum and maximum number of shares of Common
Stock which may be subscribed for pursuant to the exercise of Subscription
Rights or otherwise purchased in the Community Offering;
D. Instructions as to how the recipient of the Order Form is to
indicate thereon the number of shares of Common Stock for which such Person
elects to subscribe and the available alternative methods of payment therefor;
E. An acknowledgment that the recipient of the Order Form has received
a final copy of the prospectus, as the case may be, prior to execution of the
Order Form.
F. A statement to the effect that all subscription rights are
nontransferable, will be void at the end of the Subscription Offering, and can
only be exercised by delivering within the subscription period such properly
completed and executed Order Form, together with cash (if delivered in person),
check or money order in the full amount of the purchase price as specified in
the Order Form for the shares of Common Stock for which the recipient elects to
subscribe in the Subscription Offering (or by authorizing on the Order Form that
the Bank withdraw said amount from the subscriber's Savings Account at the Bank)
to the Bank; and
G. A statement to the effect that the executed Order Form, once
received by the Bank, may not be modified or amended by the subscriber without
the consent of the Bank.
Notwithstanding the above, the Bank reserves the right in its sole
discretion to accept or reject orders received on photocopied or facsimilied
order forms or whose payment is to be made by wire transfer.
15. UNDELIVERED, DEFECTIVE OR LATE ORDER FORMS: INSUFFICIENT PAYMENT
In the event Order Forms (a) are not delivered and are returned to the
Bank by the United States Postal Service or the Bank is unable to locate the
addressee, (b) are not received back by the Bank or are received by the Bank
after the expiration date specified thereon, (c) are defectively filled out or
executed, (d) are not accompanied by the full required payment, or, in the case
of institutional investors in the Community Offering, by delivering irrevocable
orders together with a legally binding commitment to pay by cash, check, money
order or wire transfer the full amount of the purchase price prior to 48 hours
before the completion of the conversion for the shares of Common Stock
subscribed for (including cases in which Savings Accounts from which withdrawals
are authorized are insufficient to cover the amount of the required payment), or
(e) are not mailed pursuant to a "no mail" order placed in effect by the account
holder, the subscription rights of the Person to whom such rights have been
granted will lapse as though such Person failed to return the completed Order
Form within the time period specified thereon; provided, however, that the Bank
may, but will not be required to, waive any immaterial irregularity on any Order
Form or require the submission of corrected Order Forms or the remittance of
full payment for subscribed shares by such date as the Bank may specify. The
interpretation of the Bank of terms and conditions of this Plan and of the Order
Forms will be final, subject to the authority of the OTS.
16. RESTRICTIONS ON RESALE OR SUBSEQUENT DISPOSITION
A. All shares of Common Stock purchased by Directors or Officers or
their Associates in the Stock Offering shall be subject to the restriction that,
except as provided in Section 16B below, or as may be approved by the OTS, no
interest in such shares may be sold or otherwise disposed of for value for a
period of one year following the date of purchase.
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B. The restriction on disposition of shares of Common Stock set forth
in Section 16A above shall not apply to any disposition of such shares following
the death of the individual to whom such shares were initially sold under the
terms of this Plan.
C. With respect to all shares of Common Stock subject to restrictions
on resale or subsequent disposition, each of the following provisions shall
apply;
(i) Each certificate representing shares restricted within the
meaning of Section 16A, above, shall bear a legend prominently stamped on its
face giving notice of the restriction;
(ii) Instructions shall be issued to the stock transfer agent
to recognize or effect any transfer of any certificate or record of ownership of
any such shares in violation of the restriction on transfer; and
(iii) Any shares of capital stock of the Stock Holding Company
issued with respect to a stock dividend, stock split, or otherwise with respect
to ownership of outstanding shares of Common Stock subject to the restriction on
transfer hereunder shall be subject to the same restriction as is applicable to
such Common Stock.
17. CHARTER AND BYLAWS OF THE MUTUAL HOLDING COMPANY, THE STOCK HOLDING
COMPANY AND THE BANK
As part of the Stock Offering, the charters and bylaws of the Mutual
Holding Company, the Stock Holding Company and the Bank shall be revised as
necessary in connection with the Stock Offering.
18. PAYMENT OF DIVIDENDS AND REPURCHASE OF STOCK
The Bank and the Stock Holding Company may declare dividends or make
other capital distributions or repurchase stock in accordance with applicable
laws and regulations. In accordance with applicable law, and the regulations and
policies of the OTS and the Federal Deposit Insurance Corporation, the Mutual
Holding Company may waive its right to receive dividends declared to it by the
Stock Holding Company.
19. RESIDENTS OF FOREIGN COUNTRIES AND CERTAIN STATES
The Stock Holding Company will make reasonable efforts to comply with
the securities laws of all states in the United States in which Persons entitled
to subscribe for shares of Common Stock pursuant to this Plan reside. However,
Persons may not be issued subscription rights nor be permitted to purchase
shares of Conversion Stock in the Subscription Offering (i) if such Person
resides in a foreign country or (ii) if such Person resides in a state of the
United States with respect to which, in the sole judgment of the Board of
Directors, any of the following apply: (a) a small number of Persons otherwise
eligible to subscribe for shares under this Plan reside in such state; (b) the
issuance of subscription rights or the offer or sale of shares of Common Stock
to such Persons would require the Bank, under the securities laws of such state,
to register as a broker, dealer, salesman or agent or to register or otherwise
qualify its securities for sale in such state; or (c) registration or
qualification in such state would be impracticable for reasons of cost or
otherwise.
20. REGISTRATION AND MARKET MAKING
Within the time period required by applicable laws and regulations, the
Stock Holding Company will register the securities issued in connection with the
Offering pursuant to the Securities Exchange Act of 1934 and will not deregister
such securities for a period of at least three years thereafter, except that the
maintenance of registration for three years requirement may be fulfilled by any
successor to the Stock Holding Company. In
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addition, the Stock Holding Company will use its best efforts to encourage and
assist a market-maker to establish and maintain a market for the Common Stock
and to list those securities on a national or regional securities exchange or
the Nasdaq System.
21. EXPENSES OF OFFERING
The Bank shall use its best efforts to assure that expenses incurred by
it in connection with the Offering shall be reasonable.
22. AMENDMENT OR TERMINATION OF PLAN OF STOCK ISSUANCE
This Plan may be substantively amended by the Board of Directors of the
Bank as a result of comments from the regulatory authorities or otherwise prior
to the commencement of the Offering, and at any time thereafter with the
concurrence of the OTS. This Plan may be terminated by the Board of Directors of
the Bank at any time prior to the completion of the Offering, and at any time
thereafter with the concurrence of the OTS.
In the event that mandatory new regulations pertaining to mutual
holding companies are adopted by the OTS or the DOBI prior to the completion of
the Stock Offering, this Plan may be amended to conform to the new mandatory
regulations. In the event that new mutual holding company regulations adopted by
the OTS or the DOBI prior to completion of the Stock Offering contain optional
provisions, this Plan may be amended to utilize such optional provisions at the
discretion of the Board of Directors.
23. MISCELLANEOUS
All interpretations of this Plan and application of its provisions to
particular circumstances by a majority of the Board of Directors of the Mutual
Holding Company, the Stock Holding Company and the Bank shall be final, subject
to the authority of the OTS and the DOBI.
If any term, provision, covenant or restriction contained in this Plan
is held by a court or a federal or state regulatory agency of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions contained in this Plan shall remain in
full force and effect, and shall in no way be affected, impaired or invalidated.
This Plan is to be governed by and construed in accordance with the
laws of the United States. None of the cover page, the table of contents, or the
section headings are to be considered a part of this Plan, but are included
solely for convenience of reference and shall in no way define, limit, extend,
or describe the scope or intent of any of the provisions hereof. Words in the
singular include the plural, and words in the plural include the singular.
Except for such rights as are set forth herein for eligible account holders,
this Plan shall create no rights in any Person.
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