Registration No. 333-__________
Filed February 12, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMMUNITY FEDERAL BANCORP, INC.
(Exact Name of Registrant as specified
in its Articles of Incorporation)
Delaware 64-086536
(State of incorporation) (IRS Employer Identification No.)
P.O. Box F
333 Court Street
Tupelo, Mississippi 38802
(Address of principal executive offices, including zip code)
1997 STOCK OPTION PLAN
(Full Title of the Plan)
Copies to:
John P. Soukenik, Esq.
Kenneth B. Tabach, Esq.
Jim Ingram Elias, Matz, Tiernan &
Chief Executive Officer Herrick L.L.P.
Community Federal Bancorp, Inc. 734 15th Street, N.W.
P.O. Box F Washington, D.C.
333 Court Street (202) 347-0300
Tupelo, Mississippi
(601) 842-3981
(Name, address, and telephone number
of agent for service)
Page 1 of 26 pages
Index to Exhibits is located on page 4.
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
Common Stock,
par value $0.01 462,875 $15.40(3) $7,128,275(3) $1,981.66
_______________
(1) Together with an indeterminate number of additional shares which
may be necessary to adjust the number of shares reserved for issuance
pursuant to the Community Federal Bancorp, Inc. ("Company" or
"Registrant") 1997 Stock Option Plan ("1997 Plan") as a result of a stock
split, stock dividend or similar adjustment of the outstanding common
stock, $0.01 par value per share ("Common Stock"), of the Company.
(2) Represents shares currently reserved for issuance pursuant to the
1997 Plan.
(3) Estimated solely for the purpose of calculating the registration
fee, which has been calculated pursuant to Rule 457(h) promulgated under
the Securities Act of 1933, as amended ("Securities Act"). The Proposed
Maximum Offering Price Per Share is equal to the weighted average
exercise price for the options to purchase 462,875 of Common Stock which
are outstanding under the 1997 Plan as of the date hereof.
__________________________
This Registration Statement shall become effective automatically
upon the date of filing in accordance with Section 8(a) of the Securities
Act and 17 C.F.R. 230.462.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended September 30, 1998 filed with the Commission on December
29, 1998;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year
covered by the financial statements in the Annual Report
referred to in clause (a) above;
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form 8-A
filed with the Commission on March 8, 1996;
(d) All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein,
or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
Item. 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law sets forth
circumstances under which directors, officers, employees and agents may
be insured or indemnified against liability which they may incur in their
capacity as such. The Bylaws of the Company provide that the directors,
officers, employees and agents of the Company shall be indemnified to the
full extent permitted by law. Such indemnity shall extend to expenses,
including attorney's fees, judgments, fines and amounts paid in the
settlement, prosecution or defense of the foregoing actions.
Item 7. Exemption from Registration Claimed.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits
The following exhibits are filed with or incorporated by reference
into this Registration Statement on Form S-8 (numbering corresponds to
Exhibit Table in Item 601 of Regulation S-K):
No. Exhibit Page
4 Common Stock Certificate* --
5 Opinion of Elias, Matz, Tiernan & Herrick E-1
L.L.P. as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick --
L.L.P. (contained in the opinion included
as Exhibit 5)
23.2 Consent of Arthur Andersen LLP E-3
24 Power of attorney for any subsequent --
amendments is located in the signature pages
99 1997 Stock Option Plan E-4
* Incorporated by reference from the Company's Registration Statement
on Form S-1 (Commission File No. 33-99962) filed with the Commission on
December 1, 1995, as amended.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to
include any prospectus required by Section 10(a)(3) of the Securities
Act, (ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement, and (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change in such information in the
Registration Statement; provided, however, that clauses (i) and (ii) do
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the questions whether such
indemnification by it is against public policy expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the State of Mississippi on
February 4, 1999.
COMMUNITY FEDERAL BANCORP, INC.
By: /s/Jim Ingram
Jim Ingram
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature
appears below hereby makes, constitutes and appoints Jim Ingram his or
her true and lawful attorney, with full power to sign for such person and
in such person's name and capacity indicated below, and with full power
of substitution any and all amendments to this Registration Statement,
hereby ratifying and confirming such person's signature as it may be
signed by said attorney to any and all amendments.
Name Title Date
/s/Jim Ingram Chief Executive Officer February 4, 1999
Jim Ingram and Director
(principal executive
officer)
/s/H. Lewis Whitfield President and Director February 4, 1999
H. Lewis Whitfield
/s/Sherry McCarty Chief Financial Officer February 4, 1999
Sherry McCarty (principal financial and
accounting officer)
/s/Medford M. Leake Director February 4, 1999
Medford M. Leake
/s/Charles V. Imbler, Sr. Director February 4, 1999
Charles V. Imbler, Sr.
/s/J. Leighton Pettis Director February 4, 1999
J. Leighton Pettis
/s/L. F. Sams, Jr. Director February 4, 1999
L. F. Sams, Jr.
/s/Robert R. Black Sr. Director February 4, 1999
Robert R. Black, Sr.
/s/Michael R. Thomas Director February 4, 1999
Michael R. Thomas
/s/Robert W. Reed, III
Robert W. Reed, III Director February 4, 1999
Exhibit 5
Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
Exhibit 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
TELEPHONE: (202)347-0300
FACSIMILE: (202)347-2172
TIMOTHY B. MATZ JEFFREY D. HAAS
STEPHEN M. EGE KEVIN M. HOULIHAN
RAYMOND A. TIERNAN KENNETH B. TABACH
W. MICHAEL HERRICK PATRICIA J. WOHL*
GERARD L. HAWKINS FIORELLO J. VICENCIO*
NORMAN B. ANTIN DAVID TEEOKES*
JOHN P. SOUKENIK* CRISTIN ZEISLER
GERALD F. HEUPEL, JR. ANDREW B. ROSENSTEIN*
JEFFREY A. KOEPPEL
DANIEL P. WEITZEL
PHILIP ROSS BEVAN
HUGH T. WILKINSON FEBRUARY 12, 1999 OF COUNSEL
ALLIN P. BAXTER
JACK I. ELIAS
SHERYL JONES ALU
*NOT ADMITTED IN D.C.
Board of Directors
Community Federal Bancorp, Inc.
333 Court Street
Tupelo, Mississippi 38802
Re: Registration Statement on Form S-8
462,875 Shares of Common Stock
Gentlemen:
We are special counsel to Community Federal Bancorp, Inc., a
Delaware corporation (the "Corporation"), in connection with the
preparation and filing with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, of
a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 462,875 shares
of common stock, par value $0.01 per share ("Common Stock"), to
be issued pursuant to the Corporation's 1997 Stock Option Plan
(the "Plan") upon the exercise of stock options and/or
appreciation rights (referred to as "Option Rights"). The
Registration Statement also registers an indeterminate number of
additional shares which may be necessary under the Plans to
adjust the number of shares reserved thereby for issuance as the
result of a stock split, stock dividend or similar adjustment of
the outstanding Common Stock of the Corporation. We have been
requested by the Corporation to furnish an opinion to be included
as an exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration
Statement and related Prospectus, the Certificate of
Incorporation and Bylaws of the Corporation, the Plan, a specimen
stock certificate evidencing the Common Stock of the Corporation
and such other corporate records and documents as we have deemed
appropriate. We are relying upon the originals, or copies
certified or otherwise identified to our satisfaction, of the
corporate records of the Corporation and such other instruments,
certificates and representations of public officials, officers
and representatives of the Corporation as we have deemed relevant
as a basis for this opinion. In addition, we have assumed,
without independent verification, the genuineness of all
signatures and the authenticity of all documents furnished to us
and the conformance in all respects of copies to originals.
Furthermore, we have made such factual inquiries and reviewed
such laws as we determined to be relevant for this opinion.
For purposes of this opinion, we have also assumed that (i)
the shares of Common Stock issuable pursuant to Option Rights
granted under the terms of the Plan will continue to be validly
authorized on the dates the Common Stock is issued pursuant to
the Option Rights; (ii) on the dates the Option Rights are
exercised, the Option Rights granted under the terms of the Plan
will constitute valid, legal and binding obligations of the
Corporation and will (subject to applicable bankruptcy,
moratorium, insolvency, reorganization and other laws and legal
principles affecting the enforceability of creditors' rights
generally) be enforceable as to the Corporation in accordance
with their terms; (iii) the Option Rights are exercised in
accordance with their terms and the exercise price therefor is
paid in accordance with the terms thereof; (iv) no change occurs
in applicable law or the pertinent facts; and (v) the provisions
of "blue sky" and other securities laws as may be applicable will
have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set
forth herein, we are of the opinion as of the date hereof that
the shares of Common Stock to be issued pursuant to the Plan,
when issued and sold pursuant to the Plan and upon receipt of the
consideration required thereby, will be legally issued, fully
paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the reference to this firm under the
caption "Legal Opinion" in the Prospectus of the Plan and to the
filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ John P. Soukenik
John P. Soukenik, a Partner
Exhibit 23.2
Consent of Arthur Andersen LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
report dated October 8, 1998 incorporated in Community Federal
Bancorp, Inc.'s Form 10-K for the year ended September 30, 1998
and to all references to our Firm included in or made a part of
this Registration Statement.
/s/ Arthur Andersen LLP
Birmingham, Alabama
February 11, 1999
Exhibit 99
1997 Stock Option Plan
COMMUNITY FEDERAL BANCORP, INC.
1997 STOCK OPTION PLAN
ARTICLE I
ESTABLISHMENT OF THE PLAN
Community Federal Bancorp, Inc. (the "Corporation") hereby
establishes this 1997 Stock Option Plan (the "Plan") upon the
terms and conditions hereinafter stated.
ARTICLE II
PURPOSE OF THE PLAN
The purpose of this Plan is to improve the growth and
profitability of the Corporation and its Subsidiary Companies by
providing Employees and Non-Employee Directors with a proprietary
interest in the Corporation as an incentive to contribute to the
success of the Corporation and its Subsidiary Companies, and
rewarding those Employees for outstanding performance and the
attainment of targeted goals. All Incentive Stock Options issued
under this Plan are intended to comply with the requirements of
Section 422 of the Code, and the regulations thereunder, and all
provisions hereunder shall be read, interpreted and applied with
that purpose in mind.
ARTICLE III
DEFINITIONS
3.01 "Award" means an Option or Stock Appreciation Right
granted pursuant to the terms of this Plan.
3.02 "Bank" means Community Federal Savings Bank, the
wholly owned subsidiary of the Corporation.
3.03 "Board" means the Board of Directors of the
Corporation.
3.04 "Change in Control" of the Corporation means a
change in control of a nature that would be required to be
reported in response to Items 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act, or any successor thereto,
whether or not the Corporation in fact is required to comply with
Regulation 14A hereunder.
3.05 "Code" means the Internal Revenue Code of 1986, as
amended.
3.06 "Committee" means a committee of two or more
directors appointed by the Board pursuant to Article IV hereof,
none of whom shall be an Officer or Employee of the Corporation,
and each of whom shall be a "disinterested person" within the
meaning of Rule 16b-3 under the Exchange Act, or any successor
thereto.
3.07 "Common Stock" means shares of the common stock,
$0.01 par value per share, of the Corporation.
3.08 "Disability" means any physical or mental impairment
which qualifies an Employee for disability benefits under the
applicable long-term disability plan maintained by the
Corporation or a Subsidiary Company, or, if no such plan applies,
which would qualify such Employee for disability benefits under
the Federal Social Security System.
3.09 "Effective Date" means the day upon which the Board
adopts this Plan.
3.10 "Employee" means any person who is employed by the
Corporation or a Subsidiary Company, or is an Officer of the
Corporation or a Subsidiary Company, but not including directors
who are not also Officers of or otherwise employed by the
Corporation or a Subsidiary Company.
3.11 "Exchange Act" means the Securities Exchange Act of
1934, as amended.
3.12 "Fair Market Value" shall be equal to the fair
market value per share of the Corporation's Common Stock on the
date an Award is granted. For purposes hereof, the Fair Market
Value of a share of Common Stock shall be the closing sale price
of a share of Common Stock on the date in question (or, if such
day is not a trading day in the U.S. markets, on the nearest
preceding trading day), as reported with respect to the principal
market (or the composite of the markets, if more than one) or
national quotation system in which such shares are then traded,
or if no such closing prices are reported, the mean between the
high bid and low asked prices that day on the principal market or
national quotation system then in use, or if no such quotations
are available, the price furnished by a professional securities
dealer making a market in such shares selected by the Committee.
3.13 "Incentive Stock Option" means any Option granted
under this Plan which the Board intends (at the time it is
granted) to be an incentive stock option within the meaning of
Section 422 of the Code or any successor thereto.
3.14 "Non-Employee Director" means a member of the Board
who is not an Officer or Employee of the Corporation or any
Subsidiary Company.
3.15 "Non-Qualified Option" means any Option granted
under this Plan which is not an Incentive Stock Option.
3.16 "Offering" means the offering of Common Stock to the
public pursuant to a Plan of Conversion and Agreement and Plan of
Reorganization adopted by the Bank and Community Federal Mutual
Holding Company.
3.17 "Officer" means an Employee whose position in the
Corporation or Subsidiary Company is that of a corporate officer,
as determined by the Board.
3.18 "OTS" means the Office of Thrift Supervision.
3.19 "Option" means a right granted under this Plan to
purchase Common Stock.
3.20 "Optionee" means an Employee or Non-Employee
Director or former Employee or Non-Employee Director to whom an
Option is granted under the Plan.
3.21 "Retirement" means a termination of employment which
constitutes a "retirement" under any applicable qualified pension
benefit plan maintained by the Corporation or a Subsidiary
Company, or, if no such plan is applicable, which would
constitute "retirement" under any qualified pension benefit plan
maintained by the Corporation or a Subsidiary Company, if such
individual were a participant in such plan.
3.22 "Stock Appreciation Right" means a right to
surrender an Option in consideration for a payment by the
Corporation in cash and/or Common Stock, as provided in the
discretion of the Committee in accordance with Section 8.11.
3.23 "Subsidiary Companies" means those subsidiaries of
the Corporation, including the Bank, which meet the definition of
"subsidiary corporations" set forth in Section 425(f) of the
Code, at the time of granting of the Option in question.
ARTICLE IV
ADMINISTRATION OF THE PLAN
4.01 Duties of the Committee. The Plan shall be
administered and interpreted by the Committee, as appointed from
time to time by the Board pursuant to Section 4.02. The
Committee shall have the authority in its absolute discretion to
adopt, amend and rescind such rules, regulations and procedures
as, in its opinion, may be advisable in the administration of the
Plan, including, without limitation, rules, regulations and
procedures which (i) deal with satisfaction of an Optionee's tax
withholding obligation pursuant to Section 12.02 hereof, (ii)
include arrangements to facilitate the Optionee's ability to
borrow funds for payment of the exercise or purchase price of an
Award, if applicable, from securities brokers and dealers, and
(iii) include arrangements which provide for the payment of some
or all of such exercise or purchase price by delivery of
previously owned shares of Common Stock or other property and/or
by withholding some of the shares of Common Stock which are being
acquired. The interpretation and construction by the Committee
of any provisions of the Plan, any rule, regulation or procedure
adopted by it pursuant thereto or of any Award shall be final and
binding.
4.02 Appointment and Operation of the Committee. The
members of the Committee shall be appointed by, and will serve at
the pleasure of, the Board. The Board from time to time may
remove members from, or add members to, the Committee, provided
the Committee shall continue to consist of two or more members of
the Board, none of whom shall be an officer or employee of the
Corporation, and each of whom shall be a "disinterested person"
within the meaning of Rule 16b-3 under the Exchange Act. The
Committee shall act by vote or written consent of a majority of
its members. Subject to the express provisions and limitations
of the Plan, the Committee may adopt such rules, regulations and
procedures as it deems appropriate for the conduct of its
affairs. It may appoint one of its members to be chairman and
any person, whether or not a member, to be its secretary or
agent. The Committee shall report its actions and decisions to
the Board at appropriate times but in no event less than one time
per calendar year.
4.03 Revocation for Misconduct. The Committee may by
resolution immediately revoke, rescind and terminate any Option,
or portion thereof, to the extent not yet vested, or any Stock
Appreciation Right, to the extent not yet exercised, previously
granted or awarded under this Plan to an Employee who is
discharged from the employ of the Corporation or a Subsidiary
Company for cause, which, for purposes hereof, shall mean
termination because of the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other
than traffic violations or similar offenses) or final cease-and-desist
order. Options granted to a Non-Employee Director who is
removed for cause pursuant to the Corporation's Certificate of
Incorporation or Bylaws shall terminate as of the effective date
of such removal.
4.04 Limitation on Liability. No member of the Committee
shall be liable for any action or determination made in good
faith with respect to the Plan, any rule, regulation or procedure
adopted by it pursuant thereto or any Awards granted under it.
If a member of the Committee is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative, by reason of anything done or not done by him in
such capacity under or with respect to the Plan, the Corporation
shall, subject to the requirements of applicable laws and
regulations, indemnify such member against all liabilities and
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be
in the best interests of the Corporation and its Subsidiary
Companies and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
4.05 Compliance with Law and Regulations. All Awards
granted hereunder shall be subject to all applicable Federal and
state laws, rules and regulations and to such approvals by any
government or regulatory agency as may be required. The
Corporation shall not be required to issue or deliver any
certificates for shares of Common Stock prior to the completion
of any registration or qualification of or obtaining of consents
or approvals with respect to such shares under any Federal or
state law or any rule or regulation of any government body, which
the Corporation shall, in its sole discretion, determine to be
necessary or advisable. Moreover, no Option or Stock
Appreciation Right may be exercised if such exercise would be
contrary to applicable laws and regulations.
4.06 Restrictions on Transfer. The Corporation may place
a legend upon any certificate representing shares acquired
pursuant to an Award granted hereunder noting that the transfer
of such shares may be restricted by applicable laws and
regulations.
ARTICLE V
ELIGIBILITY
Awards may be granted to such Employees or Non-Employee
Directors of the Corporation and its Subsidiary Companies as may
be designated from time to time by the Committee. Awards may not
be granted to individuals who are not Employees or Non-Employee
Directors of either the Corporation or its Subsidiary Companies.
Non-Employee Directors shall be eligible to receive only Non-Qualified
Options pursuant to Section 8.02 of the Plan.
ARTICLE VI
COMMON STOCK COVERED BY THE PLAN
6.01 Option Shares. The aggregate number of shares of
Common Stock which may be issued pursuant to this Plan, subject
to adjustment as provided in Article IX, shall be 462,875 shares,
which is equal to 10.0% of the shares of Conversion Stock issued
in the Offering. None of such shares shall be the subject of
more than one Award at any time, but if an Option as to any
shares is surrendered before exercise, or expires or terminates
for any reason without having been exercised in full, or for any
other reason ceases to be exercisable, the number of shares
covered thereby shall again become available for grant under the
Plan as if no Awards had been previously granted with respect to
such shares. Notwithstanding the foregoing, if an Option is
surrendered in connection with the exercise of a Stock
Appreciation Right, the number of shares covered thereby shall
not be available for grant under the Plan.
6.02 Source of Shares. The shares of Common Stock issued
under the Plan may be authorized but unissued shares, treasury
shares or shares purchased by the Corporation on the open market
or from private sources for use under the Plan.
ARTICLE VII
DETERMINATION OF
AWARDS, NUMBER OF SHARES, ETC.
The Committee shall, in its discretion, determine from time
to time which Employees will be granted Awards under the Plan,
the number of shares of Common Stock subject to each Award, and
whether each Option will be an Incentive Stock Option or a
Non-Qualified Stock Option. In making all such determinations
there shall be taken into account the duties, responsibilities
and performance of each respective Employee, his present and
potential contributions to the growth and success of the
Corporation, his salary and such other factors as the Committee
shall deem relevant to accomplishing the purposes of the Plan.
Non-Employee Directors shall be eligible to receive only Non-Qualified
Options pursuant to Section 8.02 of the Plan.
ARTICLE VIII
OPTIONS AND STOCK APPRECIATION RIGHTS
Each Option granted hereunder shall be on the following
terms and conditions:
8.01 Stock Option Agreement. The proper Officers on
behalf of the Corporation and each Optionee shall execute a Stock
Option Agreement which shall set forth the total number of shares
of Common Stock to which it pertains, the exercise price, whether
it is a Non-Qualified Option or an Incentive Stock Option, and
such other terms, conditions, restrictions and privileges as the
Committee in each instance shall deem appropriate, provided they
are not inconsistent with the terms, conditions and provisions of
this Plan. Each Optionee shall receive a copy of his executed
Stock Option Agreement.
8.02 Initial Grants to Non-Employee Directors. Each Non-Employee
Director of the Corporation as of the day that the Plan
is approved by stockholders of the Corporation shall be granted
an Option to purchase 19,837 shares of Common Stock effective at
such time and with a per share exercise price equal to the Fair
Market Value of a share of Common Stock on such date.
8.03 Option Exercise Price.
(a) Incentive Stock Options. The per share price at
which the subject Common Stock may be purchased upon exercise of
an Incentive Stock Option shall be no less than one hundred
percent (100%) of the Fair Market Value of a share of Common
Stock at the time such Incentive Stock Option is granted, except
as provided in Section 8.10(b).
(b) Non-Qualified Options. The per share price at which
the subject Common Stock may be purchased upon exercise of a
Non-Qualified Option shall be no less than one hundred percent
(100%) of the Fair Market Value of a share of Common Stock at the
time such Non-Qualified Option is granted.
8.04 Vesting and Exercise of Options.
(a) General Rules. Incentive Stock Options and
Non-Qualified Options granted hereunder shall become vested and
exercisable at the rate determined by the Committee and the right
to exercise shall be cumulative. Notwithstanding the foregoing,
no vesting shall occur on or after an Employee's employment with
the Corporation and all Subsidiary Companies is terminated for
any reason other than his death, Retirement or Disability or in
the event of a Change in Control. In determining the number of
shares of Common Stock with respect to which Options are vested
and/or exercisable, fractional shares will be rounded up to the
nearest whole number if the fraction is 0.5 or higher, and down
if it is less.
(b) Accelerated Vesting Upon Death, Retirement or
Disability or in the Event of a Change in Control. Unless the
Committee shall specifically state otherwise at the time an
Option is granted, all Options granted hereunder shall become
vested and exercisable in full on the date an Optionee terminates
his employment with or service to the Corporation or a Subsidiary
Company because of his death, Retirement or Disability or in the
event of a Change in Control of the Corporation.
8.05 Duration of Options.
(a) General Rule. Except as provided in Sections
8.05(b) and 8.10, each Option or portion thereof granted to
Employees and Non-Employee Directors shall be exercisable at any
time on or after it vests and becomes exercisable until the
earlier of (i) ten (10) years after its date of grant or (ii)
three (3) months after the date on which the Optionee ceases to
be employed (or in the service of the Board of Directors) by the
Corporation and all Subsidiary Companies, unless the Committee in
its discretion decides at the time of grant or thereafter to
extend such period of exercise to a period not exceeding three
(3) years.
(b) Exception for Termination Due to Death or
Disability. If an Employee dies while in the employ of the
Corporation or a Subsidiary Company or terminates employment with
the Corporation or a Subsidiary Company as a result of Disability
without having fully exercised his Options, the Optionee or the
executors, administrators, legatees or distributees of his estate
shall have the right, during the twelve-month period following
the earlier of his death or Disability, to exercise such Options
to the extent vested on the date of such death or Disability. If
a Non-Employee Director dies while serving as a Non-Employee
Director without having fully exercised his Options, the Non-Employee
Director's executors, administrators, legatees or distributees
of his estate shall have the right, during the twelve-month period
following such death, to exercise such Options. In no event,
however, shall any Option be exercisable within six (6) months
after the date of grant or more than ten (10) years from the date
it was granted.
8.06 Nonassignability. Options shall not be transferable
by an Optionee except by will or the laws of descent or
distribution, and during an Optionee's lifetime shall be
exercisable only by such Optionee or the Optionee's guardian or
legal representative.
8.07 Manner of Exercise. Options may be exercised in
part or in whole and at one time or from time to time. The
procedures for exercise shall be set forth in the written Stock
Option Agreement provided for in Section 8.01 above.
8.08 Payment for Shares. Payment in full of the purchase
price for shares of Common Stock purchased pursuant to the
exercise of any Option shall be made to the Corporation upon
exercise of the Option. All shares sold under the Plan shall be
fully paid and nonassessable. Payment for shares may be made by
the Optionee in cash or, at the discretion of the Committee in
the case of Awards to Employees, by delivering shares of Common
Stock (including shares acquired pursuant to the exercise of an
Option) or other property equal in Fair Market Value to the
purchase price of the shares to be acquired pursuant to the
Option, by withholding some of the shares of Common Stock which
are being purchased upon exercise of an Option, or any
combination of the foregoing.
8.09 Voting and Dividend Rights. No Optionee shall have
any voting or dividend rights or other rights of a stockholder in
respect of any shares of Common Stock covered by an Option prior
to the time that his name is recorded on the Corporation's
stockholder ledger as the holder of record of such shares
acquired pursuant to an exercise of an Option.
8.10 Additional Terms Applicable to Incentive Stock
Options. All Options issued under the Plan as Incentive Stock
Options will be subject, in addition to the terms detailed in
Sections 8.01 to 8.09 above, to those contained in this Section
8.10.
(a) Notwithstanding any contrary provisions contained
elsewhere in this Plan and as long as required by Section 422 of
the Code, the aggregate Fair Market Value, determined as of the
time an Incentive Stock Option is granted, of the Common Stock
with respect to which Incentive Stock Options are exercisable for
the first time by the Optionee during any calendar year, under
this Plan and stock options that satisfy the requirements of
Section 422 of the Code under any other stock option plan or
plans maintained by the Corporation (or any parent or Subsidiary
Company), shall not exceed $100,000.
(b) Limitation on Ten Percent Stockholders. The price
at which shares of Common Stock may be purchased upon exercise of
an Incentive Stock Option granted to an individual who, at the
time such Incentive Stock Option is granted, owns, directly or
indirectly, more than ten percent (10%) of the total combined
voting power of all classes of stock issued to stockholders of
the Corporation or any Subsidiary Company, shall be no less than
one hundred and ten percent (110%) of the Fair Market Value of a
share of the Common Stock of the Corporation at the time of
grant, and such Incentive Stock Option shall by its terms not be
exercisable after the earlier of the date determined under
Section 8.04 or the expiration of five (5) years from the date
such Incentive Stock Option is granted.
(c) Notice of Disposition; Withholding; Escrow. An
Optionee shall immediately notify the Corporation in writing of
any sale, transfer, assignment or other disposition (or action
constituting a disqualifying disposition within the meaning of
Section 421 of the Code) of any shares of Common Stock acquired
through exercise of an Incentive Stock Option, within two (2)
years after the grant of such Incentive Stock Option or within
one (1) year after the acquisition of such shares, setting forth
the date and manner of disposition, the number of shares disposed
of and the price at which such shares were disposed of. The
Corporation shall be entitled to withhold from any compensation
or other payments then or thereafter due to the Optionee such
amounts as may be necessary to satisfy any withholding
requirements of Federal or state law or regulation and, further,
to collect from the Optionee any additional amounts which may be
required for such purpose. The Committee may, in its discretion,
require shares of Common Stock acquired by an Optionee upon
exercise of an Incentive Stock Option to be held in an escrow
arrangement for the purpose of enabling compliance with the
provisions of this Section 8.10(c).
8.11 Stock Appreciation Rights.
(a) General Terms and Conditions. The Committee may,
but shall not be obligated to, authorize the Corporation, on such
terms and conditions as it deems appropriate in each case, to
grant rights to Optionees to surrender an exercisable Option, or
any portion thereof, in consideration for the payment by the
Corporation of an amount equal to the excess of the Fair Market
Value of the shares of Common Stock subject to the Option, or
portion thereof, surrendered over the exercise price of the
Option with respect to such shares (any such authorized surrender
and payment being hereinafter referred to as a "Stock
Appreciation Right"). Such payment, at the discretion of the
Committee, may be made in shares of Common Stock valued at the
then Fair Market Value thereof, or in cash, or partly in cash and
partly in shares of Common Stock.
The terms and conditions set with respect to a Stock
Appreciation Right may include (without limitation), subject to
other provisions of this Section 8.11 and the Plan, the period
during which, date by which or event upon which the Stock
Appreciation Right may be exercised (which shall be on the same
terms as the Option to which it relates pursuant to Section 8.04
hereunder); the method for valuing shares of Common Stock for
purposes of this Section 8.11; a ceiling on the amount of
consideration which the Corporation may pay in connection with
exercise and cancellation of the Stock Appreciation Right; and
arrangements for income tax withholding. The Committee shall
have complete discretion to determine whether, when and to whom
Stock Appreciation Rights may be granted. Notwithstanding the
foregoing, the Corporation may not permit the exercise of a Stock
Appreciation Right issued pursuant to this Plan until the
Corporation has been subject to the reporting requirements of
Section 13 of the Exchange Act for a period of at least one year
prior to the exercise of any such Stock Appreciation Right and
until a Stock Appreciation Right issued pursuant to this Plan has
been outstanding for at least six months from the date of grant.
(b) Time Limitations. If a holder of a Stock
Appreciation Right terminates service with the Corporation as an
Officer or Employee, the Stock Appreciation Right may be
exercised only within the period, if any, within which the Option
to which it relates may be exercised. Notwithstanding the
foregoing, any election by an Optionee to exercise the Stock
Appreciation Rights provided in this Plan shall be made during
the period beginning on the third business day following the
release for publication of quarterly or annual financial
information required to be prepared and disseminated by the
Corporation pursuant to the requirements of the Exchange Act and
ending on the twelfth business day following such date. The
required release of information shall be deemed to have been
satisfied when the specified financial data appears on or in a
wire service, financial news service or newspaper of general
circulation or is otherwise first made publicly available.
(c) Effects of Exercise of Stock Appreciation Rights or
Options. Upon the exercise of a Stock Appreciation Right, the
number of shares of Common Stock available under the Option to
which it relates shall decrease by a number equal to the number
of shares for which the Stock Appreciation Right was exercised.
Upon the exercise of an Option, any related Stock Appreciation
Right shall terminate as to any number of shares of Common Stock
subject to the Stock Appreciation Right that exceeds the total
number of shares for which the Option remains unexercised.
(d) Time of Grant. A Stock Appreciation Right may be
granted concurrently with the Option to which it relates or at
any time thereafter prior to the exercise or expiration of such
Option.
(e) Non-Transferable. The holder of a Stock
Appreciation Right may not transfer or assign the Stock
Appreciation Right otherwise than by will or in accordance with
the laws of descent and distribution, and during a holder's
lifetime a Stock Appreciation Right may be exercisable only by
the holder.
ARTICLE IX
ADJUSTMENTS FOR CAPITAL CHANGES
The aggregate number of shares of Common Stock available for
issuance under this Plan, the number of shares to which any
outstanding Award relates, the maximum number of shares that can
be covered by Awards to each Employee and each Non-Employee
Director and the exercise price per share of Common Stock under
any outstanding Option shall be proportionately adjusted for any
increase or decrease in the total number of outstanding shares of
Common Stock issued subsequent to the Effective Date of this Plan
resulting from a split, subdivision or consolidation of shares or
any other capital adjustment, the payment of a stock dividend, or
other increase or decrease in such shares effected without
receipt or payment of consideration by the Corporation. If, upon
a merger, consolidation, reorganization, liquidation,
recapitalization or the like of the Corporation, the shares of
the Corporation's Common Stock shall be exchanged for other
securities of the Corporation or of another corporation, each
recipient of an Award shall be entitled, subject to the
conditions herein stated, to another corporation, each recipient
of an Award shall be entitled, subject to the conditions herein
stated, to purchase or acquire such number of shares of Common
Stock or amount of other securities of the Corporation or such
other corporation as were exchangeable for the number of shares
of Common Stock of the Corporation which such optionees would
have been entitled to purchase or acquire except for such action,
and appropriate adjustments shall be made to the per share
exercise price of outstanding Options. In the event the
Corporation declares a special cash dividend or return of capital
in an amount per share which exceeds 10% of the Fair Market Value
of a share of Common Stock as of the date of declaration, the per
share exercise price of all previously granted Awards which
remain unexercised as of the date of such declaration shall be
proportionately adjusted to give effect to such special cash
dividend or return of capital as of the date of payment of such
special cash dividend or return of capital; provided that the
adjustments to the per share exercise price shall satisfy the
criteria set forth in Emerging Issues Task Force 90-9 (or any
successor thereto) so that the adjustments do not result in
compensation expense, and provided further that if such
adjustment with respect to Incentive Stock Options would be
treated as a modification of the outstanding Incentive Stock
Options with the effect that, for purposes of Section 422 and
425(h) of the Code, and the rules and regulations thereunder, new
Incentive Stock Options would be deemed to be granted, then no
adjustment to the per share exercise price of outstanding
Incentive Stock Options shall be made.
ARTICLE X
ADJUSTMENT TO EXERCISE PRICE
The Exercise Price of shares subject to outstanding Awards
shall be proportionately adjusted upon payment of a special large
and nonrecurring dividend that has the effect of a return of
capital to the stockholder.
ARTICLE XI
AMENDMENT AND TERMINATION OF THE PLAN
The Board may, by resolution, at any time terminate or amend
the Plan with respect to any shares of Common Stock as to which
Awards have not been granted, subject to regulations of the OTS
and any required stockholder approval or any stockholder approval
which the Board may deem to be advisable for any reason, such as
for the purpose of obtaining or retaining any statutory or
regulatory benefits under tax, securities or other laws or
satisfying any applicable stock exchange listing requirements.
The Board may not, without the consent of the holder of an Award,
alter or impair any Award previously granted or awarded under
this Plan as specifically authorized herein. Notwithstanding
anything contained in this Plan to the contrary, the provisions
of Articles V, VII and VIII of this Plan relating to Awards
granted to Non-Employee Directors shall not be amended more than
once every six months, other than to comport with changes in the
Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated under such
statutes.
ARTICLE XII
EMPLOYMENT RIGHTS
Neither the Plan nor the grant of any Awards hereunder nor
any action taken by the Committee or the Board in connection with
the Plan shall create any right on the part of any Employee or
Non-Employee Director of the Corporation or a Subsidiary Company
to continue in such capacity.
ARTICLE XIII
WITHHOLDING
13.01 Tax Withholding. The Corporation may withhold from
any cash payment made under this Plan sufficient amounts to cover
any applicable withholding and employment taxes, and if the
amount of such cash payment is insufficient, the Corporation may
require the Optionee to pay to the Corporation the amount
required to be withheld as a condition to delivering the shares
acquired pursuant to an Award. The Corporation also may withhold
or collect amounts with respect to a disqualifying disposition of
shares of Common Stock acquired pursuant to exercise of an
Incentive Stock Option, as provided in Section 8.10(c).
13.02 Methods of Tax Withholding. The Committee is
authorized to adopt rules, regulations or procedures which
provide for the satisfaction of an Optionee's tax withholding
obligation by the retention of shares of Common Stock to which
the Employee would otherwise be entitled pursuant to an Award
and/or by the Optionee's delivery of previously owned shares of
Common Stock or other property.
ARTICLE XIV
EFFECTIVE DATE OF THE PLAN; TERM
14.01 Effective Date of the Plan. This Plan shall become
effective on the Effective Date, and Awards may be granted
hereunder as of or after the Effective Date and prior to the
termination of the Plan, provided that no Incentive Stock Option
issued pursuant to this Plan shall qualify as such unless this
Plan is approved by the requisite vote of the holders of the
outstanding voting shares of the Corporation at a meeting of
stockholders of the Corporation held within twelve (12) months of
the Effective Date. Notwithstanding the foregoing or anything to
the contrary in this Plan, the implementation of this Plan and
any Awards granted pursuant hereto are subject to the approval of
the Corporation's stockholders.
14.02 Term of Plan. Unless sooner terminated, this Plan
shall remain in effect for a period of ten (10) years ending on
the tenth anniversary of the Effective Date. Termination of the
Plan shall not affect any Awards previously granted and such
Awards shall remain valid and in effect until they have been
fully exercised or earned, are surrendered or by their terms
expire or are forfeited.
ARTICLE XV
MISCELLANEOUS
15.01 Governing Law. To the extent not governed by
Federal law, this Plan shall be construed under the laws of the
State of Mississippi.
15.02 Pronouns. Wherever appropriate, the masculine
pronoun shall include the feminine pronoun, and the singular
shall include the plural.