As filed with the Securities and Exchange Commission on February 28, 2000.
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Delaware 43-1792717
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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(Full Title of the Plan)
(1) The maximum number of shares of common stock issuable upon awards to be
granted under the Guaranty Federal Bancshares, Inc. 2000 Stock
Compensation Plan consists of 25,000 shares which are being registered
under this Registration Statement and for which a registration fee is
being paid. Additionally, an indeterminate number of additional shares
which may be offered and issued to prevent dilution resulting from
stock splits, dividends or similar transactions.
(2) Under Rule 457(h) of the 1933 Act, the registration fee may be
calculated, inter alia, based upon the price at which the stock options
may be exercised. An aggregate of 25,000 shares are being registered
hereby, of which 17,875 shares are under option at a weighted average
exercise price of $10.50 per share ($187,688 in the aggregate). The
remainder of such shares, which are not presently subject to options
(7,125 shares), are being registered based upon the based upon the
average of the high and low selling prices of the Common Stock of the
Registrant as reported on the Nasdaq National Market on February 23,
2000, of $10.50 per share ($74,813 in the aggregate), for a total
offering of $262,501.
This Registration Statement shall become effective automatically upon the date of filing, in accordance with Section 8(a) of the Securities Act of 1933 ("1933 Act") and Rule 462 of the 1933 Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
*This Registration Statement relates to the registration of 25,000 shares of Guaranty Federal Bancshares, Inc. (the "Company" or "Registrant") common stock, $0.10 par value per share (the "Common Stock") issuable to employees, officers and directors of the Registrant or its subsidiary as compensation for services in accordance with the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan (the "Plan") under which 25,000 shares are issuable. Under the Plan, up to 7,125 shares may be awarded as shares of restricted Common Stock. The remainder of the shares reserved under the Plan not issued as restricted Common Stock may be issued as options to purchase Common Stock. Documents containing the information required by Part I of this Registration Statement will be sent or given to participants in the Plan as specified by Rule 428(b)(1). Such documents are not filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424, in reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The Company became subject to the informational requirements of the Securities Exchange Act of 1934 (the "1934 Act") on November 6, 1997 and, accordingly, files periodic reports and other information with the Commission. Reports, proxy statements and other information concerning the Company filed with the Commission may be inspected and copies may be obtained (at prescribed rates) at the Commission's Public Reference Section, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549.
The following documents filed by the Company are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1999, as filed with the Commission;
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended December 31, 1999, and September 30, 1999, respectively, as filed with the Commission; and
(c) The description of the Company's securities as contained in the Company's Registration Statement on Form 8-A, as filed with the Commission on November 6, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the 1934 Act, 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 shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Not Applicable
Not Applicable
Section 145 of the Delaware General Corporation Act sets forth circumstances under which directors, officers, employees and agents may be insured or indemnified against liability which they may incur in their capacities as such.
The Certificate of Incorporation of the Registrant (the "Certificate") requires indemnification of directors, officers and employees to the fullest extent permitted by Delaware law and limits the liability of directors to the fullest extent permitted by Delaware law.
The Registrant may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent thereof or who is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Registrant would have the power to indemnify him against such liability under the provisions of the Certificate.
A result of such provisions could be to increase the expenses of the Registrant and effectively reduce the ability of stockholders to sue on behalf of the Registrant since certain suits could be barred or amounts that might otherwise be obtained on behalf of the Registrant could be required to be repaid by the registrant to an indemnified party.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 ("1933 Act") may be permitted to directors, officers, or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 Act and is therefore unenforceable.
Not Applicable
For a list of all exhibits filed or included as part of this Registration Statement, see "Index to Exhibits" at the end of this Registration Statement.
(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 1933 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;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do no apply if the Registration Statement is on Form S-3, Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the 1934 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.
(c) The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy expressed in the 1933 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 City of Springfield in the State of Missouri, as of February 28, 2000.
Guaranty Federal Bancshares, Inc.
By: /s/James E. Haseltine
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James E. Haseltine
President and Chief Executive Officer
(Duly Authorized Representative)
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POWER OF ATTORNEY
We, the undersigned directors and officers of Guaranty Federal Bancshares, Inc., do hereby severally constitute and appoint James E. Haseltine as our true and lawful attorney and agent, to do any and all things and acts in our names in the capacities indicated below and to execute any and all instruments for us and in our names in the capacities indicated below which said James E. Haseltine may deem necessary or advisable to enable Guaranty Federal Bancshares, Inc., to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the Registration Statement on Form S-8 relating to the offering of the Company's Common Stock, including specifically, but not limited to, power and authority to sign, for any of us in our names in the capacities indicated below, the Registration Statement and any and all amendments (including post-effective amendments) thereto; and we hereby ratify and confirm all that said James E. Haseltine shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated as of the date indicated.
/s/James E. Haseltine /s/Ivy L. Rogers ------------------------------------------------ ----------------------------- James E. Haseltine Ivy L. Rogers |
President, Chief Executive Officer, and Director Director
(Principal Executive Officer)
February 28, 2000 February 28, 2000 ------------------------------------------------ ----------------------------- (Date) (Date) /s/Bruce Winston /s/Gary Lipscomb ------------------------------------------------ ----------------------------- Bruce Winston Gary Lipscomb Vice President and Chief Financial Officer Director (Principal Accounting and Financial Officer) February 28, 2000 February 28, 2000 ------------------------------------------------ ----------------------------- (Date) (Date) |
/s/Wayne V. Barnes /s/Jack L. Barham ------------------------------------------------ ----------------------------- Wayne V. Barnes Jack L. Barham Director Chairman of the Board February 28, 2000 February 28, 2000 ------------------------------------------------ ----------------------------- (Date) (Date) /s/George L. Hall /s/Raymond D. Tripp ------------------------------------------------ ----------------------------- George L. Hall Raymond D. Tripp Director Director February 28, 2000 February 28, 2000 ------------------------------------------------ ----------------------------- (Date) (Date) /s/Gregory V. Ostergren ------------------------------------------------ Gregory V. Ostergren Director February 28, 2000 ------------------------------------------------ (Date) |
INDEX TO EXHIBITS
Exhibit Description
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4.1 Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan
4.2 Form of Tax Notice for Exercise of Options
4.3 Form of Tax Notice for Awards of Restricted Stock
4.4 Form of Stock Option Agreement to be entered into with respect
to Non-Incentive Stock Options
4.5 Form of Restricted Stock Agreement to be entered into for Restricted
Stock
5.1 Opinion of Malizia Spidi & Fisch, PC as to the validity of the
Common Stock being registered
23.1 Consent of Malizia Spidi & Fisch, PC (appears in their opinion filed
as Exhibit 5.1)
23.2 Consent of Baird, Kurtz & Dobson
24 Reference is made to the Signatures section of this Registration
Statement for the Power of Attorney contained therein
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EXHIBIT 4.1
GUARANTY FEDERAL BANCSHARES, INC.
2000 STOCK COMPENSATION PLAN
GUARANTY FEDERAL BANCSHARES, INC.
2000 STOCK COMPENSATION PLAN
(a) "Award" means the grant by the Committee of Stock Options, Stock Awards, or any combination thereof as provided in the Plan.
(b) "Board" shall mean the Board of Directors of the Company, or any successor or parent corporation thereto.
(c) "Change in Control" shall mean: (i) the sale of all, or a
material portion, of the assets of the Company; (ii) the merger or
recapitalization of the Company whereby the Company is not the surviving entity;
(iii) a change in control of the Company, as otherwise defined or determined by
the Office of Thrift Supervision or regulations promulgated by it; or (iv) the
acquisition, directly or indirectly, of the beneficial ownership (within the
meaning of that term as it is used in Section 13(d) of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder) of twenty-five
percent (25%) or more of the outstanding voting securities of the Company by any
person, trust, entity or group. This limitation shall not apply to the purchase
of shares by underwriters in connection with a public offering of Company stock,
or the purchase of shares of up to 25% of any class of securities of the Company
by a tax- qualified employee stock benefit plan which is exempt from the
approval requirements, set forth under 12 C.F.R. ss.574.3(c)(1)(vi) as now in
effect or as may hereafter be amended. The term "person" refers to an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other form of
entity not specifically listed herein. The decision of the Committee as to
whether a Change in Control has occurred shall be conclusive and binding.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder.
(e) "Committee" shall mean the Board or the Stock Compensation Committee appointed by the Board in accordance with Section 5(a) of the Plan.
(f) "Common Stock" shall mean the common stock of the Company, or any successor or parent corporation thereto.
(g) "Continuous Employment" or "Continuous Status as an Employee" shall mean the absence of any interruption or termination of employment with the Company or any present or future Parent or Subsidiary of the Company. Employment shall not be considered interrupted in the case of sick leave, military leave or any other leave of absence approved by the Company or in the case of transfers between payroll locations, of the Company or between the Company, its Parent, its Subsidiaries or a successor.
(h) "Company" shall mean Guaranty Federal Bancshares, Inc., the parent corporation of the Savings Bank, or any successor or Parent thereof.
(i) "Director" shall mean a member of the Board of the Company, or any successor or parent corporation thereto.
(j) "Director Emeritus" shall mean a person serving as a director emeritus, advisory director, consulting director, or other similar position as may be appointed by the Board of Directors of the Savings Bank or the Company from time to time.
(k) "Disability" means any physical or mental impairment which renders the Participant incapable of continuing in the employment or service of the Savings Bank or the Parent in his then current capacity as determined by the Committee.
(l) "Effective Date" shall mean the date of Board adoption of the Plan.
(m) "Employee" shall mean any person employed by the Company or any present or future Parent or Subsidiary of the Company.
(n) "Fair Market Value" shall mean: (i) if the Common Stock is traded otherwise than on a national securities exchange, then the Fair Market Value per Share shall be equal to the mean between the last bid and ask price of such Common Stock on such date or, if there is no bid and ask price on said date, then on the immediately prior business day on which there was a bid and ask price. If no such bid and ask price is available, then the Fair Market Value shall be determined by the Committee in good faith; or (ii) if the Common Stock is listed on a national securities exchange, then the Fair Market Value per Share shall be not less than the average of the highest and lowest selling price of such Common Stock on such exchange on such date, or if there were no sales on said date, then the Fair Market Value shall be not less than the mean between the last bid and ask price on such date.
(o) "Stock Option" or "Option" shall mean an option to purchase Shares granted pursuant to the Plan which option is not intended to qualify under Section 422 of the Code providing the holder of such Option with the right to purchase Common Stock.
(p) "Optioned Stock" shall mean stock subject to an Option granted pursuant to the Plan.
(q) "Optionee" shall mean any person who receives an Option pursuant to the Plan.
(r) "Parent" shall mean any present or future corporation which would be a "parent corporation" as defined in Sections 424(e) and (g) of the Code.
(s) "Participant" means any Director first elected or appointed after July 22, 1998, officer or Employee of the Company or any Parent or Subsidiary of the Company or any other person providing a service to the Company who is selected by the Committee to receive an Award, or who by the express terms of the Plan is granted an Award.
(t) "Plan" shall mean the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan.
(u) "Retirement" shall mean termination of service in all capacities as an Employee, Director and Director Emeritus following attainment of not less than age 55 and completion of not less than ten years of Service to the Company or the Savings Bank. Service to the Company or the Savings Bank rendered prior to the Effective Date shall be recognized in determining eligibility to meet the requirements of Retirement under the Plan.
(v) "Savings Bank" or "Bank" shall mean Guaranty Federal Savings Bank, or any successor corporation thereto.
(w) "Share" shall mean one share of the Common Stock.
(x) "Stock Award" means an Award granted to a Participant pursuant to Section 12 of the Plan.
(y) "Subsidiary" shall mean any present or future corporation
which constitutes a "subsidiary corporation" as defined in Sections 424(f) and
(g) of the Code.
If an Award shall expire, become unexercisable, or be forfeited for any reason prior to its exercise, new Awards may be granted under the Plan with respect to the number of Shares as to which such expiration has occurred.
(a) Composition of the Committee. The Plan shall be administered by the Board of Directors of the Company or a Committee which shall consist of not less than two Directors of the Company appointed by the Board and serving at the pleasure of the Board. All persons designated as members of the Committee shall meet the requirements of a "Non-Employee Director" within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended, as found at 17 CFR ss.240.16b-3.
(b) Powers of the Committee. The Committee is authorized (but only to the extent not contrary to the express provisions of the Plan or to resolutions adopted by the Board) to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the form and content of Awards to be issued under the Plan and to make other determinations necessary or advisable for the administration of the Plan, and shall have and may exercise such other power and authority as may be delegated to it by the Board from time to time. A majority of the entire Committee shall constitute a quorum and the action of a majority of the members present at any meeting at which a quorum is present shall be deemed the action of the Committee. In no event may the Committee revoke outstanding Awards without the consent of the Participant.
The President of the Company and such other officers as shall be designated by the Committee are hereby authorized to execute written agreements evidencing Awards on behalf of the Company and to cause them to be delivered to the Participants. For Awards of Stock Options, such agreements shall set forth the Option exercise price, the number of shares of Common Stock subject to such Option, the expiration date of such Options, and such other terms and restrictions applicable to such Award as are determined in accordance with the Plan or the actions of the Committee.
(c) Effect of Committee's Decision. All decisions, determinations and interpretations of the Committee shall be final and conclusive on all persons affected thereby.
(a) Option Price. The price per Share at which each Stock Option granted by the Committee under the Plan may be exercised shall not, as to any particular Stock Option, be less than the Fair Market Value of the Common Stock on the date that such Stock Option is granted.
(b) Payment. Full payment for each Share of Common Stock purchased upon the exercise of any Stock Option granted under the Plan shall be made at the time of exercise of each such Stock Option and shall be paid in cash (in United States Dollars), Common Stock or a combination of cash and Common Stock. Common Stock utilized in full or partial payment of the exercise price shall be valued at the Fair Market Value at the date of exercise. The Company shall accept full or partial payment in Common Stock only to the extent permitted by applicable law. No Shares of Common Stock shall be issued until full payment has been received by the Company, and no Optionee shall have any of the rights of a stockholder of the Company until Shares of Common Stock are issued to the Optionee.
(c) Term of Stock Option. The term of exercisability of each Stock Option granted pursuant to the Plan shall be not more than ten (10) years from the date each such Stock Option is granted.
(d) Exercise Generally. Except as otherwise provided by
Section 9 of the Plan or by action of the Committee at the time of the grant of
a Stock Option, Stock Options granted will be first exercisable at the rate of
20% on the one year anniversary of the date of grant and 20% annually thereafter
during such periods of service as an Employee, Director or Director Emeritus.
The Committee may impose additional conditions upon the right of any Optionee to
exercise any Stock Option granted hereunder which is not inconsistent with the
terms of the Plan.
(e) Cashless Exercise. Subject to vesting requirements, if applicable, an Optionee who has held a Stock Option for at least six months may engage in the "cashless exercise" of the Option. Upon a cashless exercise, an Optionee shall give the Company written notice of the exercise of the Option together with an order to a registered broker-dealer or equivalent third party, to sell part or all of the Optioned Stock and to deliver enough of the proceeds to the Company to pay the Option exercise price and any applicable withholding taxes. If the Optionee does not sell the Optioned Stock through a registered broker-dealer or equivalent third party, the Optionee can give the Company written notice of the exercise of the Option and the third party purchaser of the Optioned Stock shall pay the Option exercise price plus any applicable withholding taxes to the Company.
(f) Transferability. A Stock Option granted pursuant to the Plan shall be exercised during an Optionee's lifetime only by the Optionee to whom it was granted and shall not be assignable or transferable otherwise than by will or by the laws of descent and distribution.
(a) Termination of Service. Except as may be specified by the Committee at the time of grant of an Option, in the event that any Optionee's service with the Company shall terminate for any reason, other than Disability, death or Retirement, all of any such Optionee's Stock Options, and all of any such Optionee's rights to purchase or receive Shares of Common Stock pursuant thereto, shall automatically terminate on (A) the earlier of (i) or (ii): (i) the respective expiration dates of any such Stock Options, or (ii) the expiration of not more than three (3) months after the date of such termination of service; or (B) at such later date as is determined by the Committee at the time of the grant of such Award based upon the Optionee's continuing status as a Director or Director Emeritus of the Savings Bank or the Company, but only if, and to the extent that, the Optionee was entitled to exercise any such Stock Options at the date of such termination of service. In the event that a Subsidiary ceases to be a Subsidiary of the Company, the employment of all of its employees who are not immediately thereafter employees of the Company shall be deemed to terminate upon the date such Subsidiary so ceases to be a Subsidiary of the Company.
(b) Disability or Retirement. Except as may be specified by the Committee at the time of grant of an Option, in the event that any Optionee's service with the Company shall terminate as the result of the Disability or Retirement of such Optionee, all such Stock Options shall become immediately 100% exercisable and such Optionee may exercise any Stock Options granted to the Optionee pursuant to the Plan at any time prior to the respective expiration dates of any such Stock Options.
(c) Death. Except as may be specified by the Committee at the time of grant of an Option, in the event of the death of an Optionee, any Stock Options granted to such Optionee shall become immediately 100% exercisable and may be exercised by the person or persons to whom the Optionee's rights under any such Stock Options pass by will or by the laws of descent and distribution (including the Optionee's estate during the period of administration) at any time prior to the respective expiration dates of any such Stock Options.
(d) Stock Options Deemed Exercisable. For purposes of this Section, any Stock Option held by any Optionee shall be considered exercisable at the date of termination of service if any such Stock Option would have been exercisable at such date of termination of service without regard to the Disability or death of the Participant.
(e) Termination of Stock Options. Except as may be specified by the Committee at the time of grant of an Option, to the extent that any Stock Option granted under the Plan to any Optionee whose service with the Company terminates shall not have been exercised within the applicable period set forth in this Section, any such Stock Option, and all rights to purchase or receive Shares of Common Stock pursuant thereto, as the case may be, shall terminate on the last day of the applicable period.
(a) Adjustment. Subject to any required action by the stockholders of the Company, within the sole discretion of the Committee, the aggregate number of Shares of Common Stock for which Options may be granted hereunder, the number of Shares of Common Stock covered by each outstanding
Option, the number of Shares subject to Stock Awards, and the exercise price per Share of Common Stock of each such Option, shall all be proportionately adjusted for any increase or decrease in the number of issued and outstanding Shares of Common Stock resulting from a subdivision or consolidation of Shares (whether by reason of merger, consolidation, recapitalization, reclassification, split-up, combination of shares, or otherwise) or the payment of a stock dividend (but only on the Common Stock) or any other increase or decrease in the number of such Shares of Common Stock effected without the receipt or payment of consideration by the Company (other than Shares held by dissenting stockholders).
(b) Change in Control. All outstanding Awards shall become immediately exercisable in the event of a Change in Control of the Company, as determined by the Committee. In the event of such a Change in Control, the Committee and the Board of Directors will take one or more of the following actions to be effective as of the date of such Change in Control:
(i) provide that such Options shall be assumed, or equivalent options shall be substituted, ("Substitute Options") by the acquiring or succeeding corporation (or an affiliate thereof), provided that: the shares of stock issuable upon the exercise of such Substitute Options shall constitute securities registered in accordance with the Securities Act of 1933, as amended, ("1933 Act") or such securities shall be exempt from such registration in accordance with Sections 3(a)(2) or 3(a)(5) of the 1933 Act, (collectively, "Registered Securities"), or in the alternative, if the securities issuable upon the exercise of such Substitute Options shall not constitute Registered Securities, then the Optionee will receive upon consummation of the Change in Control transaction a cash payment for each Option surrendered equal to the difference between (1) the Fair Market Value of the consideration to be received for each share of Common Stock in the Change in Control transaction times the number of shares of Common Stock subject to such surrendered Options, and (2) the aggregate exercise price of all such surrendered Options, or
(ii) in the event of a transaction under the terms of which the holders of the Common Stock of the Company will receive upon consummation thereof a cash payment (the "Merger Price") for each share of Common Stock exchanged in the Change in Control transaction, to make or to provide for a cash payment to the Optionees equal to the difference between (A) the Merger Price times the number of Shares of Common Stock subject to such Options held by each Optionee (to the extent then exercisable at prices not in excess of the Merger Price) and (B) the aggregate exercise price of all such surrendered Options in exchange for such surrendered Options.
(c) Extraordinary Corporate Action. Notwithstanding any provisions of the Plan to the contrary, subject to any required action by the stockholders of the Company, in the event of any Change in Control, recapitalization, merger, consolidation, exchange of Shares, spin-off, reorganization, tender offer, partial or complete liquidation or other extraordinary corporate action or event, the Committee, in its sole discretion, shall have the power, prior or subsequent to such action or event to:
(i) appropriately adjust the number of Shares of Common Stock subject to each Option, the Option exercise price per Share of Common Stock, and the consideration to be given or received by the Company upon the exercise of any outstanding Option;
(ii) cancel any or all previously granted Options, provided that appropriate consideration is paid to the Optionee in connection therewith; and/or
(iii) make such other adjustments in connection with the Plan as the Committee, in its sole discretion, deems necessary, desirable, appropriate or advisable.
(d) Acceleration. The Committee shall at all times have the power to accelerate the exercise date of Options previously granted under the Plan.
Except as expressly provided in Sections 10(a) and 10(b) hereof, no Optionee shall have any rights by reason of the occurrence of any of the events described in this Section 10.
(a) Grants of the Stock Awards. Stock Awards may only be made in whole shares of Common Stock. Stock Awards may only be granted from Shares reserved under the Plan and available for award at the time the Stock Award is made to the Participant.
(b) Terms of the Stock Awards. The Committee shall determine the dates on which Stock Awards granted to a Participant shall vest and any terms or conditions which must be satisfied prior to the vesting of any Stock Award or portion thereof. Any such terms or conditions shall be determined by the Committee as of the date of grant. As promptly as practicable after a determination is made that a Stock Award is to be made, the Committee shall notify the Participant in writing of the grant of the Stock Award, the number of Shares covered by the Stock Award, and the terms upon which the Shares subject to the Stock Award may be earned. The date on which the Committee makes its award determination or the date the Committee so notifies the Participant shall be considered the date of grant of the Stock Awards as determined by the Committee. The Committee shall maintain records as to all grants of Stock Awards under the Plan. Except as otherwise provided by the terms of the Plan or by action of the Committee at the time of the grant of the Stock Awards, the Stock Awards will be first exercisable at the rate of 20% on the one year anniversary of the date of grant and 20% annually thereafter during such periods of service as an Employee, Director or Director Emeritus.
(c) Termination of Employment or Service (General). Unless otherwise determined by the Committee, upon the termination of a Participant's employment or service for any reason other than Retirement, Disability or death, a Change in Control, or Termination for Cause, any Stock Awards in which the Participant has not become vested as the date of such termination shall be forfeited and any rights the Participant had to such Stock Awards shall become null and void.
(d) Termination of Employment or Service (Retirement). Unless otherwise determined by the Committee, in the event of a Participant's Retirement, any Stock Awards in which the Participant has not become vested as of the date of Retirement shall immediately become 100% earned and
non-forfeitable as of the Participant's date of Retirement and shall be distributed as soon as practicable thereafter.
(e) Termination of Employment or Service (Disability or Death). Unless otherwise determined by the Committee, in the event of a termination of the Participant's service due to Disability or death, all unvested Stock Awards held by such Participant shall immediately become 100% earned and non- forfeitable as of the date of such termination and shall be distributed as soon as practicable thereafter.
(f) Change in Control. Unless otherwise determined by the Committee, in the event of a Change in Control, any Stock Awards in which the Participant has not become vested as of the date of such Change in Control shall become immediately 100% earned and non-forfeitable on the date of the Change in Control and shall be distributed to the Participant as soon as practicable thereafter.
(g) Termination of Employment or Service (Termination for Cause). In the event of the Participant's Termination for Cause, all Stock Awards in which the Participant had not become vested as of the effective date of such Termination for Cause shall be forfeited and any rights such Participant had to such unvested Stock Awards shall become null and void. Termination for Cause is defined at 12 C.F.R. 563.39(b)(l) and shall be determined within the sole discretion of the Board.
(h) Maximum Individual Award. No individual Employee shall be granted an amount of Stock Awards which exceeds 25% of all Stock Awards eligible to be granted under Section 3 of the Plan. In no event shall Stock Awards granted to non-employee Directors in the aggregate under this Plan exceed more than 25% of the total number of Shares authorized for delivery under Section 3 of the Plan.
(i) Issuance of Certificates. As soon as practicable after the date of grant with respect to shares of Common Stock pursuant to a Stock Award, the Company shall cause to be issued a stock certificate, registered in the name of the Participant to whom such Stock Award was granted, evidencing such Shares; provided, that the Company shall not cause such a stock certificate to be issued unless it has received a stock power duly endorsed in blank with respect to such Shares. Each such stock certificate shall bear the following legend:
"The transferability of this certificate and the shares of stock represented hereby are subject to the restrictions, terms and conditions (including forfeiture provisions and restrictions against transfer) contained in the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan and award agreement entered into between the registered owner of such shares and Guaranty Federal Bancshares, Inc. A copy of the Plan and award agreement is on file in the office of Guaranty Federal Bancshares, Inc., located at 1341 West Battlefield, Springfield, Missouri 65807.
Such legend shall not be removed until the Participant becomes vested in such Shares pursuant to the terms of the Plan and award agreement.
(j) Non-Transferability. A Stock Award shall not be transferable by a Participant, and during the lifetime of the Participant, Stock Awards may only be earned by and paid to the Participant who was notified in writing of the Stock Award by the Committee pursuant to Section 12(b). No Participant or
beneficiary shall have any right in or claim to any assets of the Plan, nor shall the Company be subject to any claim for benefits hereunder.
(k) Payment of Dividends. A Participant or beneficiary shall also be entitled to receive, with respect to each such Share distributed, a payment equal to any cash dividends and the number of Shares of Common Stock equal to any stock dividends, declared and paid with respect to a Share of the Common Stock if the record date for determining shareholders entitled to receive such dividends falls between the date the relevant Stock Award was granted and the date the relevant Stock Award or installment thereof is issued. Such cash dividend amounts shall be held in arrears and distributed to such Participant, less applicable income tax withholding, upon the earning of the applicable Stock Award.
(l) Voting of Stock Awards. After a Stock Award has been granted and such Stock Award has been issued in the form of Common Stock, but for which the Shares covered by such Stock Award have not yet been vested and earned to the Participant pursuant to the Plan, the Participant shall be entitled to vote such Shares of Common Stock which the Stock Awards cover subject to the rules and procedures adopted by the Committee for this purpose.
(m) Form of Distribution. All Stock Awards, together with any Shares representing stock dividends, shall be distributed in the form of Common Stock. One share of Common Stock shall be given for each Stock Award earned. Payments representing cash dividends (and earnings thereon) shall be made in cash. Notwithstanding anything within the Plan to the contrary, upon a Change in Control whereby substantially all of the Common Stock of the Company shall be acquired for cash, all Stock Awards, together with any Shares representing stock dividends associated with Stock Awards, shall be, at the sole discretion of the Committee, distributed as of the effective date of such Change in Control, or as soon as administratively feasible thereafter, in the form of cash equal to the consideration received in exchange for such Common Stock represented by such Stock Awards.
(n) Regulatory Exceptions. No Stock Awards shall be distributed, however, unless and until all of the requirements of all applicable law and regulations shall have been fully complied with, as determined by the Committee.
(a) Action by the Board. The Board may alter, suspend or discontinue the Plan at any time within its sole discretion.
(b) Change in Applicable Law. Notwithstanding any other provision contained in the Plan, in the event of a change in any federal or state law, rule or regulation which would make the exercise of all or part of any previously granted Option unlawful or subject the Company to any penalty,
the Committee may restrict any such exercise without the consent of the Optionee or other holder thereof in order to comply with any such law, rule or regulation or to avoid any such penalty.
(a) Shares shall not be issued with respect to any Option granted under the Plan unless the issuance and delivery of such Shares shall comply with all relevant provisions of applicable law, including, without limitation, the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, any applicable state securities laws and the requirements of any stock exchange upon which the Shares may then be listed.
(b) The inability of the Company to obtain any necessary authorizations, approvals or letters of non-objection from any regulatory body or authority deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares issuable hereunder shall relieve the Company of any liability with respect to the non-issuance or sale of such Shares.
(c) As a condition to the exercise of an Option, the Company may require the person exercising the Option to make such representations and warranties as may be necessary to assure the availability of an exemption from the registration requirements of federal or state securities law.
(d) Notwithstanding anything herein to the contrary, upon the termination of employment or service of an Optionee by the Company or its Subsidiaries for "cause" as defined at 12 C.F.R. 563.39(b)(1) as determined by the Board of Directors, all Options held by such Optionee shall cease to be exercisable as of the date of such termination of employment or service.
(e) Upon the exercise of an Option by an Optionee (or the Optionee's personal representative), the Committee, in its sole and absolute discretion, may make a cash payment to the Optionee, in whole or in part, in lieu of the delivery of Shares of Common Stock. Such cash payment to be paid in lieu of delivery of Common Stock shall be equal to the difference between the Fair Market Value of the Common Stock on the date of the Option exercise and the exercise price per share of the Option. Such cash payment shall be in exchange for the cancellation of such Option. Such cash payment shall not be made in the event that such transaction would result in liability to the Optionee or the Company under Section 16(b) of the Securities Exchange Act of 1934, as amended, and regulations promulgated thereunder.
Shares pursuant to the exercise of an Option or the receipt of Shares pursuant to a Stock Award, the Company shall have the right to require the Participant or such other person to pay the Company the amount of any taxes which the Company is required to withhold with respect to such Shares, or, in lieu thereof, to retain, or to sell without notice, a number of such Shares sufficient to cover the amount required to be withheld.
EXHIBIT 4.2
FORM OF TAX NOTICE
FOR EXERCISE OF OPTIONS
TAX ISSUES RELATED TO EXERCISE OF STOCK OPTIONS
This memorandum reviews the tax effects upon the exercise of "Non-Incentive Stock Options" ("NSOs") under the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan.
Upon the exercise of an NSO, the amount by which the fair market value of the shares on the date of exercise exceeds the exercise price will be taxed to the optionee as ordinary income. The Company will be entitled to a deduction in the same amount, provided it makes all required withholdings on the compensation element of the exercise. In general, the optionee's tax basis in the shares acquired by exercising an NSO is equal to the fair market value of such shares on the date of exercise. Upon a subsequent sale of any such shares in a taxable transaction, the optionee will realize capital gain or loss (long-term or short-term, depending on whether the shares were held for more than 12 months before the sale) in an amount equal to the difference between his or her basis in the shares and the sale price.
Special rules apply if an optionee pays the exercise price upon exercise of NSOs with previously acquired shares of stock. Except as described below with respect to shares acquired pursuant to ISOs, such a transaction is treated as a tax-free exchange of the old shares for the same number of new shares. To that extent, the optionee's basis in the new shares is the same as his or her basis in the old shares, i.e., there is a carryover of basis, and the capital gain holding period runs without interruption from the date when the old shares were acquired. The value of any new shares received by the optionee in excess of the number of old shares surrendered less any cash the optionee pays for the new shares will be taxed as ordinary income. The optionee's basis in the additional shares is equal to the fair market value of such shares on the date the shares were transferred, and the capital gain holding period commences on the same date. The effect of these rules is to defer the date when any gain in the old shares that are used to buy new shares must be recognized for tax purposes. Stated differently, these rules allow an optionee to finance the exercise of an NSO by using shares of stock that he or she already owns, without paying current tax on any unrealized appreciation in the value of all or a portion of those old shares.
EXHIBIT 4.3
FORM OF TAX NOTICE
FOR AWARDS OF RESTRICTED STOCK
TAX NOTICE FOR AWARDS OF RESTRICTED STOCK
The awards granted under the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan (the "Plan") will be in the form of Common Stock which shall vest in five installments at the rate of 20% of such shares per installment. Taxable compensation equal to the fair market value of the Common Stock at the date of vesting of each such stock award will be recognized by each participant in the Plan.
1. Stock awarded under the Plan is generally taxable to the participant at the time that such awards become 100% vested and non-forfeitable, based upon the fair market value of such stock at the time of such vesting. Therefore, the vesting of stock as of February 17, 2001, and annually thereafter, constitutes an tax event.
2. A participant may make an election pursuant to Section 83(b) of the Internal Revenue Code ("Code") within 30 days of the date of the transfer of an award to elect to include in gross income for the current taxable year the fair market value of such stock as of the date of the transfer of an award. Such election must be filed with the Internal Revenue Service within 30 days of the date of the transfer of the stock award. Therefore, such an election may be filed for stock awards to vest at a future date.
3. Tax withholding obligations related to stock awards that vest may be satisfied by the participant paying the Bank (by check) an amount sufficient to satisfy applicable withholding taxes.
For example, suppose that an employee was scheduled to vest in 1,000 shares having a fair market value equal to $20 per share ($20,000 in the aggregate). Assuming the employee's liability for withholding and employment taxes totaled 45% of the ordinary income being recognized, the amount necessary to pay such taxes would be 45% of $20,000 or $9,000. The employee will pay the Bank $9,000. The employee would recognize $20,000 of ordinary income.
For individuals who are subject to the short-swing profit rule imposed under Section 16 of the Securities Exchange Act of 1934, if shares are withheld in satisfaction of the withholding taxes then such withholding should be reported on a Form 4 or 5 to be filed with the SEC.
EXHIBIT 4.4
FORM OF STOCK OPTION AGREEMENT TO BE ENTERED INTO
WITH RESPECT TO NON-INCENTIVE STOCK OPTIONS
STOCK OPTIONS for a total of ______ shares of Common Stock of Guaranty Federal Bancshares, Inc. (the "Company") is hereby granted to ________________ (the "Optionee") at the price determined as provided in, and in all respects subject to the terms, definitions and provisions of the 2000 Stock Compensation Plan (the "Plan") adopted by the Company which is incorporated by reference herein, receipt of which is hereby acknowledged. Such Stock Options do not comply with Options granted under Section 422 of the Internal Revenue Code of 1986, as amended.
(a) Schedule of Rights to Exercise.
Percentage of Total Shares
Awarded Which Are
Date Options Non-forfeitable
---- ------- ---------------
Upon grant........................ 0 0%
As of............................. _______ 20%
As of............................. _______ 40%
As of............................. _______ 60%
As of............................. _______ 80%
As of............................. _______ 100%
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Options shall continue to vest annually provided that such holder remains an employee, director or director's emeritus of Guaranty Federal Savings Bank or the Company. Notwithstanding any provisions in this Section 2, in no event shall this Option be exercisable prior to six months following the date of grant. Options shall be 100% vested and exercisable upon the death, Retirement or Disability of the Optionee, or upon a Change in Control of the Company.
(b) Method of Exercise. This Option shall be exercisable by a written notice which shall:
(i) State the election to exercise the Option, the number of Shares with respect to which it is being exercised, the person in whose name the stock certificate or certificates for such Shares of Common Stock is to be registered, his address and Social Security Number (or if more than one, the names, addresses and Social Security Numbers of such persons);
(ii) Contain such representations and agreements as to the holder's investment intent with respect to such shares of Common Stock as may be satisfactory to the Company's counsel;
(iii) Be signed by the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel for the Company, of the right of such person or persons to exercise the Option; and
(iv) Be in writing and delivered in person or by certified mail to the Treasurer of the Company.
Payment of the purchase price of any Shares with respect to which the Option is being for shares of Common Stock as to which the Option shall be exercised shall be registered in the name of the person or persons exercising the Option.
Guaranty Federal Bancshares, Inc.
Attest:
[SEAL]
PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
2000 STOCK COMPENSATION PLAN
Guaranty Federal Bancshares, Inc.
1341 W. Battlefield
Springfield, Missouri 65807
Dear Sir:
The undersigned elects to exercise the Non-Incentive Stock Option to purchase __________shares of Common Stock of Guaranty Federal Bancshares, Inc. under and pursuant to a Stock Option Agreement dated _________________.
Delivered herewith is a certified or bank cashier's or teller's check and/or shares of Common Stock, valued at the fair market value of the stock on the date of exercise, as set forth below.
The name or names to be on the stock certificate or certificates and the address and Social Security Number of such person(s) is as follows:
Name________________________________
Address_____________________________
Social Security Number____________________
Very truly yours,
EXHIBIT 4.5
FORM OF RESTRICTED STOCK AGREEMENT TO BE ENTERED INTO
FOR RESTRICTED STOCK
PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
This Agreement shall constitute an award of Restricted Stock ("Award") for a total of _____________ shares of Common Stock of GUARANTY FEDERAL BANCSHARES, INC. (the "Corporation"), which is hereby granted to _________________ (the "Participant") at the price determined as provided herein, and in all respects subject to the terms, definitions and provisions of the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan (the "Plan") adopted by the Corporation which is incorporated by reference herein, receipt of which is hereby acknowledged.
(a) Schedule of Vesting of Awards.
Number Percentage of Total Shares
of Awarded Which Are
Date Shares Non-forfeitable
---- ------ ---------------
Upon Grant 0 0%
As of............................ ___ 20%
As of............................ ___ 40%
As of............................ ___ 60%
As of............................ ___ 80%
As of............................ ___ 100%
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(b) Restrictions on Awards. This Award may not be delivered to the recipient if the issuance of the Shares pursuant to the Award would constitute a violation of any applicable federal or state securities or other law or valid regulation. As a condition to the Participant's receipt of this Award, the Corporation may require the person receiving this Award to make any representation and warranty to the Corporation as may be required by any applicable law or regulation.
Guaranty Federal Bancshares, Inc.
Attest:
[SEAL]
EXHIBIT 5.1
OPINION OF MALIZIA SPIDI & FISCH, PC AS TO
THE VALIDITY OF THE COMMON STOCK BEING REGISTERED
MALIZIA SPIDI & FISCH, PC
ATTORNEYS AT LAW
1301 K STREET, N.W. 637 KENNARD ROAD
SUITE 700 EAST STATE COLLEGE, PENNSYLVANIA 16801
WASHINGTON, D.C. 20005 (814) 466-6625
(202) 434-4660 FACSIMILE: (814) 466-6703
FACSIMILE: (202) 434-4661
February 28, 2000
Board of Directors
Guaranty Federal Bancshares, Inc.
1341 W. Battlefield
Springfield, Missouri 65807
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Gentlemen:
We have acted as special counsel to Guaranty Federal Bancshares, Inc., a Delaware corporation (the "Company"), in connection with the preparation of the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (the "Registration Statement") under the Securities Act of 1933, as amended, relating to 25,000 shares of common stock, par value $.10 per share (the "Common Stock") of the Company under the Guaranty Federal Bancshares, Inc. 2000 Stock Compensation Plan (the "Plan"), as more fully described in the Registration Statement. Under the Plan, up to 7,125 shares may be awarded as shares of restricted Common Stock. The remainder of the shares reserved under the Plan not issued as restricted Common Stock may be issued as options to purchase Common Stock. You have requested the opinion of this firm with respect to certain legal aspects of the proposed offering.
We have examined such documents, records, and matters of law as we have deemed necessary for purposes of this opinion and based thereon, we are of the opinion that the Common Stock when issued pursuant to the stock awards granted under and in accordance with the terms of the Plan will be duly and validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-8.
Sincerely,
/s/Malizia Spidi & Fisch, PC ----------------------------------- Malizia Spidi & Fisch, PC |
EXHIBIT 23.1
CONSENT OF MALIZIA SPIDI & FISCH, PC
(APPEARS IN THEIR OPINION FILED AS EXHIBIT 5.1)
EXHIBIT 23.2
CONSENT OF BAIRD, KURTZ & DOBSON
Hammons Tower
BKD LOGO BAIRD, KURTZ & DOBSON 901 E. St. Louis Street 1034 W. Main St.
Suite 1000, P.O. Box 1190 P.O. Box 1277
Springfield, Missouri 65801-1190 Branson, MO 65615-1277
417 865-8701 Fax 417 865-0682 417-334-5165 Fax 417-334-4823
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www.bkd.com
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Board of Directors
Guaranty Federal Bancshares, Inc.
Springfield, Missouri
We consent to the incorporation by reference in this Registration Statement on Form S-8 of GUARANTY FEDERAL BANCSHARES, INC. of our report dated July 23, 1999, relating to the consolidated balance sheets of GUARANTY FEDERAL BANCSHARES, INC. as of June 30, 1999 and 1998, and the related consolidated statements of income, changes in stockholders' equity and cash flows for each of the three years in the period ended June 30, 1999, which report appears in the June 30, 1999, annual report on Form 10-K of GUARANTY FEDERAL BANCSHARES, INC.
/s/Baird, Kurtz & Dobson
February 25, 2000
Springfield, Missouri
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Member of
Moores
Rowland
International