As filed with the Securities and Exchange Commission on July 20, 2001
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
GUARANTY FEDERAL BANCSHARES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 43-1792717
(State or other jurisdiction (I.R.S. Employer
or incorporation Identification No.)
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1341 West Battlefield
Springfield, Missouri 65807
(Address of Principal Executive Offices)
Guaranty Federal Bancshares, Inc. 2001 Stock Compensation Plan
(Full title of the Plan)
Mr. James E. Haseltine
President and Chief Executive Officer
1341 West Battlefield
Springfield, Missouri 65807
(417) 520-4333
(Name, address and telephone number of agent for service)
Copies to:
Gregory J. Rubis, Esq.
Manatt, Phelps & Phillips, LLP
1001 Page Mill Road, Building 2
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
------------------------ ---------------------- ------------------- -------------------- -----------------------
common stock, $0.10 par 25,000 shares/(1)/ $11.54/(2)/ $288,500/(2)/ $72.13
value per share ("Common
Stock")
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) promulgated under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the "Commission").
Guaranty Federal Bancshares, Inc. (the "Registrant") hereby files this Registration Statement on Form S-8 registering 25,000 shares of Common Stock issuable upon the exercise of options granted under the Guaranty Federal Bancshares, Inc. 2001 Stock Compensation Plan "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by the Registrant with the Commission are hereby incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K, filed on September 26, 2000, for the year ended June 30,2000;
(b) Quarterly Reports on Form 10-Q filed on November 14, 2000, February 12, 2001 and May 15, 2001, for the quarters ended September 30, 2000, December 31, 2000 and March 31, 2001, respectively;
(c) The description of the Common Stock contained in the Company's Registration Statement on Form 8-A, as filed with the Commission on November 6, 1997, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
that this Registration Statement is filed with the Commission and prior to the
filing of a post-effective amendment to this Registration Statement 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
respective dates of filing of such documents. Any statement contained 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.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock will be passed upon for the Registrant by Manatt, Phelps & Phillips, LLP, Palo Alto, California.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation Law, the Registrant's Certificate of Incorporation includes a provision that eliminates the personal liability of its directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. In
addition, as permitted by Section 145 of the Delaware General Corporation Law, the Certificate of Incorporation of the Registrant provides that: (i) the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law; (ii) the Registrant may, in its discretion, indemnify other officers, employees and agents as set forth in the Delaware General Corporation Law; (iii) upon receipt of an undertaking to repay such advances if indemnification is determined to be unavailable, the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a proceeding; (iv) the rights conferred in the Certificate of Incorporation are not exclusive and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents; (v) the Registrant may not retroactively apply any amendment of the Certificate of Incorporation provisions relating to indemnity; and (vi) to the fullest extent permitted by the Delaware General Corporation Law, a director or executive officer will be deemed to have acted in good faith if his or her action is based on the records or books of account of the Registrant or on information supplied to him or her by officers of the Registrant in the course of their duties or on the advice of legal counsel for the Registrant or on information or records given or reports made to the Registrant by independent certified public accountants or appraisers or other experts.
The indemnification provision in the Certificate of Incorporation may be sufficiently broad to permit indemnification of the Registrant's directors and executive officers for liabilities arising under the Securities Act.
As approved by the Registrant's Board of Directors, the Registrant maintains director and officer liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
-------------- ----------------------
4 Guaranty Federal Bancshares, Inc. 2001 Stock Compensation
Plan.
5 Opinion of Manatt, Phelps & Phillips, LLP.
23.1 Consent of Manatt, Phelps & Phillips, LLP (included in
Exhibit 5).
23.2 Consent of BKD, LLP.
24 Power of Attorney (included on signature page hereto).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
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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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement;
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 Securities Exchange Act of 1934; 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 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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, State of Missouri, on this 19th day of July 2001.
GUARANTY FEDERAL BANCSHARES, INC.
By: /s/ James E. Haseltine
--------------------------------
James E. Haseltine
CHIEF EXECUTIVE OFFICER
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints James E. Haseltine and Bruce Winston, and each of them, his or her attorneys-in-fact and agents, each with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act, this Registration Statement was signed by the following persons in the capacities and on the dates stated.
NAME TITLE DATE
/s/ Jack L. Barham Chairman of the Board of Directors July 19, 2001
-----------------------------------
Jack L. Barham
/s/ James E. Haseltine Director, President, and Chief July 19, 2001
----------------------------------- Executive Officer
James E. Haseltine (principal executive officer)
Director
-----------------------------------
Wayne V. Barnes
/s/ Ivy L. Rogers Director July 19, 2001
-----------------------------------
Ivy L. Rogers
/s/ Gary Lipscomb Director July 19, 2001
-----------------------------------
Gary Lipscomb
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/s/ Raymond D. Tripp Director July 19, 2001
-----------------------------------
Raymond D. Tripp
/s/ Gregory V. Ostergren Director July 19, 2001
----------------------------------
Gregory V. Ostergren
/s/ Kurt D. Hellweg Director July 19, 2001
-----------------------------------
Kurt D. Hellweg
/s/ Bruce Winston Vice President and Chief Financial July 19, 2001
----------------------------------- Officer
Bruce Winston (principal financial and
accounting officer)
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Exhibit 4
GUARANTY FEDERAL BANCSHARES, INC.
2001 STOCK COMPENSATION PLAN
1. Purpose of the Plan. The Plan shall be known as the Guaranty Federal
Bancshares, Inc. ("Company") 2001 Stock Compensation Plan (the "Plan"). The
purpose of the Plan is to attract and retain qualified personnel for positions
of substantial responsibility and to provide additional incentive to officers,
directors first elected or appointed after July 22, 1998, employees and other
persons providing services to the Company, or any present or future parent or
subsidiary of the Company to promote the success of the business. The Plan is
intended to provide for the grant of Stock Options that do not qualify under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") and
Shares of Common Stock of the Company granted as Stock Awards.
2. Definitions. The following words and phrases when used in this Plan with an initial capital letter, unless the context clearly indicates otherwise, shall have the meaning as set forth below. Wherever appropriate, the masculine pronoun shall include the feminine pronoun and the singular shall include the plural.
(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.
3. Shares Subject to the Plan. Except as otherwise required by the provisions of Section 10 hereof, the aggregate number of Shares with respect to which Awards may be made pursuant to the Plan shall not exceed 25,000 Shares.
The maximum number of Shares reserved hereby for purchase pursuant to the exercise of Options granted under the Plan is the difference between (i) 25,000, and (ii) the number of Shares granted pursuant to Stock Awards. Such Shares may either be from authorized but unissued shares or shares purchased in the market for Plan purposes.
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.
4. Six Month Holding Period. Subject to vesting requirements, if applicable, except in the event of death or disability of the Optionee, a minimum of six months must elapse between the date of the grant of an Option and the date of the sale of the Common Stock received through the exercise of such Option.
5. Administration of the Plan.
(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.
6. Eligibility for Awards. The Committee shall from time to time determine the officers, Directors, and employees and other persons who shall be granted Awards under the Plan, the number of Awards to be granted to each such Participant. In selecting Participants and in determining the number of Shares of Common Stock to be granted to each such Participant, the Committee may consider the nature of the prior and anticipated future services rendered by each such Participant, each such Participant's current and potential contribution to the Company and such other factors as the Committee may, in its sole discretion, deem relevant. Participants who have been granted an Award may, if otherwise eligible, be granted additional Awards.
7. Term of the Plan. The Plan shall continue in effect for a term of ten
(10) years from the Effective Date, unless sooner terminated pursuant to Section
14 hereof. No Option shall be granted under the Plan after ten (10) years from
the Effective Date.
8. Terms and Conditions of Stock Options. Stock Options may be granted by the Committee from time to time in its sole discretion and in accordance with the Plan. Stock Options granted pursuant to the Plan shall be evidenced by an instrument in such form as the Committee shall from time to time approve. Each Stock Option granted pursuant to the Plan shall comply with, and be subject to, the following terms and conditions:
(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 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.
9. Effect of Termination of Service, Disability, Death and Retirement on Stock Options.
(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.
10. Recapitalization, Merger, Consolidation, Change in Control and Other Transactions.
(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.
11. Time of Granting Options. The date of grant of an Option under the Plan shall, for all purposes, be the date on which the Committee makes the determination of granting such Option. Notice of the grant of an Option shall be given to each individual to whom an Option is so granted within a reasonable time after the date of such grant in a form determined by the Committee.
12. Stock Awards. The Committee may make grants of Stock Awards, which shall consist of the grant of some number of Shares of Common Stock, to a Participant upon such terms and conditions as it may determine to the extent such terms and conditions are consistent with the following provisions:
(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. 2001 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.
13. Modification of Options. At any time and from time to time, the Board may authorize the Committee to direct the execution of an instrument providing for the modification of any outstanding Option, provided no such modification, extension or renewal shall confer on the holder of said Option any right or benefit which could not be conferred on the Optionee by the grant of a new Option at such time, or shall not materially decrease the Optionee's benefits under the Option without the consent of the holder of the Option, except as otherwise permitted under Section 14 hereof.
14. Amendment and Termination of the Plan.
(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.
15. Conditions Upon Issuance of Shares; Limitations on Option Exercise; Cancellation of Option Rights.
(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.
16. Reservation of Shares. During the term of the Plan, the Company will reserve and keep available a number of Shares sufficient to satisfy the requirements of the Plan.
17. Unsecured Obligation. No Participant under the Plan shall have any interest in any fund or special asset of the Company by reason of the Plan or the grant of any Option under the Plan. No trust fund shall be created in connection with the Plan or any grant of any Option hereunder and there shall be no required funding of amounts which may become payable to any Participant.
18. Withholding Tax. The Company shall have the right to deduct from all amounts paid in cash with respect to the cashless exercise of Options under the Plan any taxes required by law to be withheld with respect to such cash payments. Where a Participant or other person is entitled to receive 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.
19. No Employment Rights. No Director, Employee or other person shall have a right to be selected as a Participant under the Plan. Neither the Plan nor any action taken by the Committee in administration of the Plan shall be construed as giving any person any rights of employment or retention as an Employee, Director or in any other capacity with the Company, the Savings Bank or other Subsidiaries.
20. Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Missouri, except to the extent that federal law shall be deemed to apply.
[LETTERHEAD OF MANATT]
EXHIBIT 5
July 19, 2001
Guaranty Federal Bancshares, Inc.
1341 West Battlefield
Springfield, MO 65807
Re: Guaranty Federal Bancshares, Inc. - Registration Statement on Form S-8 for Offering of an Aggregate of 25,000 Shares of Common Stock
Gentlemen:
We have acted as counsel to Guaranty Federal Bancshares, Inc., a Delaware- chartered corporation (the "Company") in connection with the Registration Statement on Form S-8 to be filed on July 20, 2001 (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Act"), covering 25,000 shares of the Company's Common Stock, $0.10 par value per share (the "Shares"), consisting of 25,000 shares authorized for issuance under the Company's 2001 Stock Compensation Plan (the "Plan").
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents, the corporate proceedings taken by the Company in connection with the establishment of the Plan and originals, or certified, conformed or reproduction copies, of all such records, agreements, instruments and documents as we have deemed relevant or necessary as the basis for the opinion hereinafter expressed. In all such examinations, we have assumed the genuineness of all signatures on original or certified copies and the conformity to original or certified copies of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to such opinion, we have relied upon, and assumed the accuracy of, certificates and oral or written statements and other information of or from public officials, officers or representatives of the Company, and others.
Based upon the foregoing review, we are of the opinion that the Shares, when issued, delivered and paid for in accordance with the terms of the Plan, the provisions of the option agreements duly authorized under the Plan and the Registration Statement, will be duly authorized and validly issued, fully paid and non-assessable.
July 19, 2001
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement.
This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plan or the Shares.
Very truly yours,
/s/ Manatt, Phelps & Phillips, LLP Manatt, Phelps & Phillips, LLP |
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
[Letterhead]
The Board of Directors
Guaranty Federal Bancshares, Inc.:
We consent to incorporation herein by reference of our report dated July 21, 2000, relating to the consolidated balance sheets of Guaranty Federal Bancshares, Inc. as of June 30, 2000 and 1999, and the related consolidated statements of income, changes in stockholders' equity, and cash flows for each of the years in the three-year period ending June 30, 2000, which report appears in the June 30, 2000 annual report on Form 10-K of Guaranty Federal Bancshares, Inc.
Springfield, Missouri /s/ BKD, LLP July 19, 2001 |