-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TN9dOBxwihyk78yYgPHAisbmcCeFqwb8UOI68pFTdXBvSJ8SIlY19+5Ing0Kfwsf gl4UYHR988WuQahZTGuLnQ== 0000882377-97-000107.txt : 19970324 0000882377-97-000107.hdr.sgml : 19970324 ACCESSION NUMBER: 0000882377-97-000107 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970321 EFFECTIVENESS DATE: 19970321 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CARVER BANCORP INC CENTRAL INDEX KEY: 0001016178 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 133904174 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23743 FILM NUMBER: 97560503 BUSINESS ADDRESS: STREET 1: 75 W 125TH ST CITY: NEW YORK STATE: NY ZIP: 10027-4512 BUSINESS PHONE: 2128764747 MAIL ADDRESS: STREET 1: 75 W 125TH ST CITY: NEW YORK STATE: NY ZIP: 10027-4512 S-8 1 FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on March 21, 1997 REGISTRATION NO. - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 --------------- CARVER BANCORP, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 13-3904174 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 75 WEST 125TH STREET NEW YORK, NEW YORK 10027-4512 (212) 876-4747 (ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES) --------------- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN (FULL TITLE OF THE PLAN) --------------- Thomas L.Clark, Jr. President and Chief Executive Officer Carver Bancorp, Inc. 75 West 125th Street New York, New York 10027-4512 (212) 876-4747 Copy to: Lisa M. Miller, Esq. Thacher Proffitt & Wood Two World Trade Center - 39th Floor New York, New York 10048 (212) 912-7400 (NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND AREA CODE, OF AGENT FOR SERVICE) --------------- CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Title of Securities to be Registered Amount to be Proposed Maximum Offering Proposed Maximum Amount of Registered(1) Price Per Share (2) Aggregate Offering Price (2) Registration Fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.01 par value 69,431 shares $10.375 $719,036.05 $217.89 ====================================================================================================================================
(1) Based on the number of shares of common stock of Carver Bancorp, Inc. ("Carver") currently reserved for issuance under the Carver Bancorp Inc. Management Recognition Plan ("Plan"). In addition to such shares, this registration statement also covers an undetermined number of shares of common stock of Carver that, by reason of certain events specified in the Plan, may become issuable under the Plan. (2) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457 of the Securities Act of 1933, pursuant to which 67,099 shares of restricted stock are deemed to be offered at $10.375 per share, the average of the bid and ask prices of Carver common stock at the close of the day on September 12, 1995, the date of grant, as reported on the Nasdaq National Market, and 2,332 shares that may be granted as restricted stock in the future are deemed to be offered at $9.813 per share, the average of the bid and ask prices of Carver common stock at the close of the day on March 18, 1997 as reported on the Nasdaq National Market. - -------------------------------------------------------------------------------- PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION. Not required to be filed with the Securities and Exchange Commission (the "Commission"). ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be filed with the Commission. Note: The document containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1). Such document need not be filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended ("Securities Act"). PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information heretofore filed with the Commission by Carver Bancorp, Inc. (the "Registrant"), File No. 0-21487, are incorporated by reference in this registration statement: (1) the Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 1996, September 30, 1996 and December 31, 1996; (2) the description of the Registrant's Common Stock ("Common Stock") contained in the Registrant's Registration Statement on Form S-4 filed on June 7, 1996, Registration No. 333-5559, and any amendments thereto; and (3) the Carver Bancorp, Inc. Proxy Statement-Prospectus dated June 27, 1996 for the Annual Meeting of Shareholders held on July 29, 1996. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the date of the termination of the offering of the Common Stock offered hereby shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any document which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. The Registrant will provide without charge to each person to whom this Prospectus is delivered, upon request of any such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits to such documents). Written requests should be directed to Raymond L. Bruce, Esq., Vice President, Corporate Counsel and Secretary, Carver Bancorp, Inc., 75 West 125th Street, New York, New York 10027-4512. Telephone requests may be directed to (212) 876-4747. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's authority to indemnify its officers and directors is governed by the provisions of Section 145, as amended, of the Delaware General Corporation Law ("GCL") and by the Certificate of Incorporation of the Registrant. Article Tenth of the Certificate of Incorporation of the Registrant provides that any person who is made a party or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director or officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, will be indemnified and held harmless by the Registrant to the fullest extent authorized by the GCL. Such indemnification shall apply whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent. Such indemnification shall be against all expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered in connection with the proceeding. This right to indemnification includes, to the extent permitted by the GCL, the right to be paid by the Registrant the expenses incurred in defending any such proceeding in advance of its final determination. If a claim for indemnification is not paid in full by the Registrant within sixty days after a written claim has been received by the Registrant, the indemnitee may at any time thereafter bring suit against the Registrant to recover the unpaid amount of the claim. If successful in whole or in part in any such suit (or in a suit brought by the Registrant to recover -2- an advancement of expenses), the indemnitee shall be entitled to be paid also the expenses of prosecuting (or defending) such suit. In any such suit, it shall be a defense to the Registrant that the indemnitee has not met any applicable standard for indemnification set forth in the GCL. The burden of proof in any such suit shall be on the Registrant to prove that the indemnitee is not entitled to be indemnified. The right of indemnification conferred in Article Tenth of the Certificate of Incorporation shall not be exclusive of any right which any person may have or hereafter acquire under any statute, the Registrant's Bylaws, agreement, vote of stockholders, disinterested directors, or otherwise. The Registrant maintains directors' and officers' liability insurance coverage for all directors and officers of the Registrant and its subsidiaries through First Monetary Mutual Limited for a one-year policy term ending January 2, 1998. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. 4.1 Carver Bancorp, Inc. Management Recognition Plan 4.2 Forms of Plan Share Agreements for Employees and Directors under the Plan 4.3 Certificate of Incorporation of Carver Bancorp, Inc., incorporated by reference to the Registrant's Registration Statement on Form S-4 filed on June 7, 1996, Registration No. 333-5559, and any amendments thereto. 4.4 By-Laws of Carver Bancorp, Inc., incorporated by reference to the Registrant's Registration Statement on Form S-4 filed on June 7, 1996, Registration No. 333-5559, and any amendments thereto. 5. Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the legality of the securities being registered. 23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5 hereof). 23.2 Consent of Mitchell & Titus, LLP. 23.3 Consent of Radics & Co., LLC ITEM 9. UNDERTAKINGS. A. RULE 415 OFFERING. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: to include any material information with -3- respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining 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. (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. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. C. INCORPORATED ANNUAL AND QUARTERLY REPORTS. 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. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for liabilities arising under the Securities 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant for 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 Securities Act and will be governed by the final adjudication of such issue. -4- SIGNATURES Pursuant to the requirements of the Securities Act, 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 New York, State of New York on the 18th day of February, 1997. Carver Bancorp, Inc. (Registrant) By:/s/ Thomas L. Clark, Jr. ------------------------------------------ Thomas L. Clark, Jr. President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Thomas L. Clark, Jr. President and Chief Executive Officer February 18, 1997 - ---------------------------------- (Principal Executive Officer) and Thomas L. Clark, Jr. Director /s/ Biswarup Mukherjee (Principal Financial and Accounting March 18, 1997 - ---------------------------------- Officer Biswarup Mukherjee /s/ David R. Jones Director and Chairman of the Board February 18, 1997 - ---------------------------------- David R. Jones Director and Vice Chairman of the Board , 1997 - ---------------------------------- -------------- M. Moran Weston, Ph.D. /s/ David N. Dinkins Director February 18, 1997 - ---------------------------------- David N. Dinkins /s/ Linda H. Dunham Director February 18, 1997 - ---------------------------------- Linda H. Dunham /s/ Richard T. Greene Director February 18, 1997 - ---------------------------------- Richard T. Greene /s/ Herman Johnson Director February 18, 1997 - ---------------------------------- Herman Johnson, CPA
-5- EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------ ----------- 4.1 Carver Bancorp, Inc. Management Recognition Plan 4.2 Forms of Plan Share Agreements for Employees and Directors under the Plan 4.3 Certificate of Incorporation of Carver Bancorp, Inc., incorporated by reference to the Registrant's Registration Statement on Form S-4, filed on June 7, 1996, Registration No. 333-5559, and any amendments thereto 4.4 By-Laws of Carver Bancorp, Inc., incorporated by reference to the Registrant's Registration Statement on Form S-4, filed June 7, 1996, Registration No. 333-5559, and any amendments thereto 5. Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the legality of the securities being registered 23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5 hereof) 23.2 Consent of Mitchell & Titus, LLP 23.3 Consent of Radics & Co., LLC -6- EX-4.1 2 MANAGEMENT RECOGNITION PLAN EXHIBIT 4.1 ----------- Carver Bancorp, Inc. Management Recognition Plan CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN ARTICLE I ESTABLISHMENT OF THE PLAN 1.01 The Company hereby establishes this Plan upon the terms and conditions hereinafter stated. 1.02 Through acceptance of their appointment to the Committee, each member of the Committee hereby accepts his or her appointment hereunder upon the terms and conditions hereinafter stated. ARTICLE II PURPOSE OF THE PLAN 2.01 The purpose of the Plan is to reward and retain personnel of experience and ability in key positions of responsibility by providing Employees and Directors of the Company and its Affiliates with a proprietary interest in the Company, and as compensation for their past contributions to the Company and the Bank, and as an incentive to make such contributions in the future. ARTICLE III DEFINITIONS The following words and phrases when used in this Plan with an initial capital letter, shall have the meanings set forth below unless the context clearly indicates otherwise. Wherever appropriate, the masculine pronoun shall include the feminine pronoun and the singular shall include the plural. 3.01 "Affiliate" shall mean any "parent corporation" or "subsidiary corporation" of the Company, as such terms are defined in Section 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended. 3.02 "Bank" means Carver Federal Savings Bank. 3.03 "Beneficiary" means the person or persons designated by a Participant to receive any benefits payable under the Plan in the event of such Participant's death. Such person or persons shall be designated in writing on forms provided for this purpose by the Committee and may be changed from time to time by similar written notice to the Committee. In the absence of a written designation, the Beneficiary shall be the Participant's surviving spouse, if any or if none, his estate. -1- 3.04 "Board" means, prior to October 17, 1996, the Board of Directors of the Bank, and, following October 16, 1996, the Board of Directors of the Company. 3.05 "Committee" means the Management Recognition Plan Committee appointed by the Board pursuant to Article IV hereof. 3.06 "Common Stock" means shares of the common stock of the Company, $.01 par value per share. 3.07 "Company" means Carver Bancorp, Inc., its successors and assigns. 3.08 "Continuous Service" shall mean the absence of any interruption or termination of service as an Employee or Director of the Company or an Affiliate. Continuous Service shall not be considered interrupted in the case of sick leave, military leave or any other leave of absence approved by the Bank or in the case of transfers between payroll locations of the Bank or between the Bank, an Affiliate or a successor. 3.09 "Date of Conversion" means the date of the conversion of the Bank from mutual to stock form. 3.10 "Director" means, prior to October 17, 1996, a member of the Board of Directors of the Bank, and, following October 16, 1996, a member of the Board of Directors of the Company. 3.11 "Disability" shall mean a physical or mental condition, which in the sole and absolute discretion of the Committee, is reasonably expected to be of indefinite duration and to substantially prevent a Participant from fulfilling his or her duties or responsibilities to the Company or an Affiliate. 3.12 "Disinterested Person" means any member of the Board who, at the time discretion under the Plan is exercised, is a "disinterested person" within the meaning of Rule 16b-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended. 3.13 "Effective Date" means the date on which the Plan first becomes effective, as determined under Section 8.07 hereof. 3.14 "Employee" means any person who is employed by the Company or any of its Affiliates. 3.15 "Participant" means an Employee or Director who holds a Plan Share Award. 3.16 "Plan" means this Carver Bancorp, Inc. Management Recognition Plan, and any amendments thereto. -2- 3.17 "Plan Shares" means shares of Common Stock held in the Trust which are awarded or issuable to a Participant pursuant to the Plan. 3.18 "Plan Share Award" means a right granted under this Plan to receive Plan Shares. 3.19 "Plan Share Reserve" means the shares of Common Stock held by the Trustee pursuant to Sections 5.02 and 5.03. 3.20 "Trust" and "Trust Agreement" mean that agreement entered into pursuant to the terms hereof between the Company and the Trustee, and "Trust" means the trust created thereunder. 3.21 "Trustee" means that person(s) or entity appointed by the Board pursuant to the Trust Agreement to hold legal title to the Plan assets for the purposes set forth herein. 3.22 "Year of Service" shall mean a full twelve-month period, measured from the date of an Award and each annual anniversary of that date, during which a Participant has continuously been an Employee or Director of the Company or an Affiliate. ARTICLE IV ADMINISTRATION OF THE PLAN 4.01 ROLE AND POWERS OF THE COMMITTEE. The Plan shall be administered and interpreted by the Committee, which shall consist of not less than three non-employee members of the Board who are Disinterested Persons. In the absence at any time of a duly appointed Committee, the Plan shall be administered by those members of the Board who are Disinterested Persons, and by the Board if there are less than three Disinterested Persons. The Committee shall have all of the powers allocated to it in this and other Sections of the Plan. Except as limited by the express provisions of the Plan or by resolutions adopted by the Board, the Committee shall have sole and complete authority and discretion (i) to make Plan Share Awards to such Employees as the Committee may select, (ii) to determine the form and content of Plan Share Awards to be issued under the Plan, (iii) to interpret the Plan, (iv) to prescribe, amend and rescind rules and regulations relating to the Plan, and (v) to make other determinations necessary or advisable for the administration of the Plan. The Committee shall have and may exercise such other power and authority as may be delegated to it by the Board from time to time. Subject to Section 4.02, the interpretation and construction by the Committee of any provisions of the Plan or of any Plan Share Award granted hereunder shall be final and binding. The Committee shall act by vote or written consent of a majority of its members, and shall report its actions and decisions with respect to the Plan to the Board at appropriate times, but in no event less than one time per calendar year. The Committee may recommend to the Board one or more persons or entity to act as Trustee(s) in accordance with the provisions of this Plan and the Trust. -3- 4.02 ROLE OF THE BOARD. The members of the Committee shall be appointed or approved by, and will serve at the pleasure of, the Board. The Board may in its discretion from time to time remove members from, or add members to, the Committee. The Board shall have all of the powers allocated to it in this and other Sections of the Plan, may take any action under or with respect to the Plan which the Committee is authorized to take, and may reverse or override any action taken or decision made by the Committee under or with respect to the Plan, provided, however, that the Board may not revoke any Plan Share Award already made or impair a participant's vested rights under a Plan Share Award, except as provided in Section 7.01(b) herein. Members of the Board who are eligible for or who have been granted Plan Share Awards (other than pursuant to Section 6.04) may not vote on any matters affecting the administration of the Plan or the grant of Plan Shares or Plan Share Awards (although such members may be counted in determining the existence of a quorum at any meeting of the Board during which actions with regard thereto are taken). Further, with respect to all actions taken by the Board in regard to the Plan, such action shall be taken by a majority of the Board where such a majority of the directors acting in the matter are Disinterested Persons. 4.03 LIMITATION ON LIABILITY. No member of the Board or the Committee or the Trustee(s) shall be liable for any determination made in good faith with respect to the Plan or any Plan Shares or Plan Share Awards granted under it. If a member of the Board or the Committee or any Trustee is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of anything done or not done by him in such capacity under or with respect to the Plan, the Company shall indemnify such member, subject to the indemnification provisions of 12 C.F.R. Section 545.121, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company and its Affiliates and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. ARTICLE V CONTRIBUTIONS; PLAN SHARE RESERVE 5.01 AMOUNT AND TIMING OF CONTRIBUTIONS. The Board shall determine the amounts (or the method of computing the amounts) to be contributed by the Company to the Trust. Such amounts shall be paid to the Trustee at the time of contribution. No contributions to the Trust by Employees shall be permitted. 5.02 INVESTMENT OF TRUST ASSETS. The Trustee shall invest Trust assets only in accordance with the Trust Agreement; provided that the Trust shall not purchase more than 69,431 shares of Common Stock. 5.03 EFFECT OF ALLOCATIONS, RETURNS AND FORFEITURES UPON PLAN SHARE RESERVES. Upon the allocation of Plan Share Awards under Section 6.02, the Plan Share Reserve shall be -4- reduced by the number of Shares subject to the Awards so allocated. Any Shares subject or attributable to an Award which may not be earned because of a forfeiture by the Participant pursuant to Section 7.01 shall be added to the Plan Share Reserve. ARTICLE VI ELIGIBILITY; ALLOCATIONS 6.01 ELIGIBILITY. Only Employees shall be eligible to receive Plan Share Awards. In selecting those Employees to whom Plan Share Awards will be granted and the number of shares covered by such Awards, the Committee shall consider the position, duties and responsibilities of the eligible Employees, the value of their services to the Company and its Affiliates, and any other factors the Committee may deem relevant. Notwithstanding the foregoing, (i) the Committee shall automatically make the Plan Share Awards specified in Sections 6.04 and 6.05 hereof; and (ii) no Employee shall receive Plan Share Awards relating to more than 25 % of the number of Plan Shares referenced in Section 5.02, and no non-employee Director, other than Directors Richard Greene and M. Moran Weston, shall receive Plan Share Awards relating to more than 5% of said number of Plan Shares, with all non-employee Directors as a group receiving Plan Share Awards relating to no more than 30% of said number of Plan Shares. 6.02 ALLOCATIONS. The Committee will determine which Employees will be granted discretionary Plan Share Awards, and the number of Shares covered by each Plan Share Award, provided that in no event shall any Awards be made which will violate the governing instruments of the Company or its Affiliates or any applicable federal or state law or regulation. In the event Plan Shares are forfeited for any reason or additional shares of Common Stock are purchased by the Trustee, the Committee may, from time to time, determine which of the Employees referenced in Section 6.01 above will be granted additional Plan Share Awards to be awarded from the forfeited or acquired Plan Shares. 6.03 FORM OF ALLOCATION. As promptly as practicable after a determination is made pursuant to Section 6.02 that a Plan Share Award is to be made, the Committee shall notify the Participant in writing of the grant of the Award, the number of Plan Shares covered by the Award, and the terms upon which the Plan Shares subject to the Award may be earned. The date on which the Committee so notifies the Participant shall be considered the date of grant of the Plan Share Awards. The Committee shall maintain records as to all grants of Plan Share Awards under the Plan. 6.04 AUTOMATIC GRANTS TO NON-EMPLOYEE DIRECTORS. Notwithstanding any other provisions of this Plan, each Director who is not an Employee but is a Director on the Effective Date shall receive, on said date, a Plan Share Award for 3,471 Plan Shares, except that Directors Richard Greene and M. Moran Weston shall each receive a Plan Share Award for 5,207 Plan Shares. Each Director who joins the Board after the Effective Date shall receive, on said date, a Plan Share Award of 1,000 Plan Shares (or such lesser number as are available hereunder for Plan Share Awards). Plan Share Awards received under the provisions of this Section shall -5- become vested and nonforfeitable according to the general rules set forth in subsections (a) and (b) of Section 7.01, and the Committee shall have no discretion to alter or accelerate said vesting requirements. Unless otherwise inapplicable or inconsistent with the provisions of this Section, the Plan Share Awards to be granted to hereunder shall be subject to all other provisions of this Plan; provided that the Committee shall approve a Director's request made pursuant to Section 7.03 (b). 6.05 AUTOMATIC GRANTS TO EMPLOYEES. On the Effective Date, each of the following individuals shall receive a Plan Share Award as to the number of Plan Shares listed below, provided that such award shall not be made to an individual who is not an Employee on the Effective Date: Employee Number Of Plan Shares Awarded Percentage Of Plan Shares - -------- ----------------------------- ------------------------- T. Clark 17,357 25.0% B. Mukherjee 10,415 15.0% M. Lewis 6,500 9.4% R. Bruce 3,471 5.0% S. Harmon 1,800 2.6% R. St. Rose 1,500 2.2% G. Brea 1,200 1.7% H. Dabney 1,200 1.7% A. Kabia 1,200 1.7% H. Gay 1,100 1.6% O. Harris 1,000 1.4% E. Jackson 1,000 1.4% - ---------- ----- ---- Total 47,743 68.7% Plan Share Awards received under the provisions of this Section shall become vested and nonforfeitable according to the general rules set forth in subsections (a) and (b) of Section 7.01, and the Committee shall have no discretion to alter said vesting requirements. Unless otherwise inapplicable or inconsistent with the provisions of this Section, the Plan Share Awards to be granted hereunder shall be subject to all other provisions of this Plan; provided that the Committee shall approve an Employee's request made pursuant to Section 7.03 (b). 6.06 ALLOCATIONS NOT REQUIRED. Notwithstanding anything to the contrary in Sections 6.01 and 6.02, but subject to Sections 6.04 and 6.05, no Employee or Director shall have any -6- right or entitlement to receive a Plan Share Award hereunder, such Awards being at the total discretion of the Committee, nor shall any Employees or Directors as a group have such a right. The Committee may, with the approval of the Board (or, if so directed by the Board) return all Common Stock in the Plan Share Reserve to the Company at any time, and cease issuing Plan Share Awards. ARTICLE VII EARNINGS AND DISTRIBUTION OF PLAN SHARES; VOTING RIGHTS 7.01 EARNING PLAN SHARES; FORFEITURES. (a) GENERAL RULES. Twenty percent (20%) of the Plan Shares subject to a Plan Share Award shall be earned and become non-forfeitable by a Participant upon his or her completion of each of five Years of Service. For purposes of this paragraph, with respect to each Plan Share Award, "Year of Service" means a full twelve-month period, measured from the date of a Plan Share Award and each annual anniversary of that date, during which the Participant has continuously been an Employee or Director of the Company or an Affiliate. (b) EXCEPTION FOR TERMINATIONS DUE TO DEATH OR DISABILITY. Notwithstanding the general rule contained in Section 7.01(a) above, all Plan Shares subject to a Plan Share Award held by a Participant whose service with the Company or an Affiliate terminates due to the Participant's death or Disability, shall be deemed earned as of the Participant's last day of service with the Company or an Affiliate and shall be distributed as soon as practicable thereafter. (c) TERMINATIONS DUE TO JUST CAUSE. Notwithstanding anything herein to the contrary, all Plan Shares subject to a Plan Share Award held by a Participant whose service with the Company or an Affiliate is terminated for Just Cause shall be unexercisable on the date of notice of such termination and forfeited on the effective date of such TERMINATION. For the purposes of this Paragraph, "Just Cause" shall mean termination because of the Participant's personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, rule or regulation (other than traffic violations or similar offenses) or final cease-and-desist order. 7.02 ACCRUAL OF DIVIDENDS. Whenever Plan Shares are paid to a Participant or Beneficiary under Section 7.03, such Participant or Beneficiary shall also be entitled to receive, with respect to each Plan Share paid an amount equal to any cash dividends and a number of shares of Common Stock equal to any stock dividends, declared and paid with respect to a share of Common Stock between the date the relevant Plan Share Award was initially granted to such Participant and the date the Plan Shares are being distributed. There shall also be distributed an appropriate amount of net earnings, if any, of the Trust with respect to any cash dividends so paid out. -7- 7.03 DISTRIBUTION OF PLAN SHARES. (a) TIMING OF DISTRIBUTIONS: GENERAL RULE. Except as provided in Subsections (c) and (d) below, the Trustee shall distribute Plan Shares and accumulated cash from dividends and interest to the Participant or his Beneficiary, as the case may be, as soon as practicable after they have been earned. No fractional shares shall be distributed. (b) FORM OF DISTRIBUTION. The Trustee shall distribute all Plan Shares, together with any shares representing stock dividends, in the form of Common Stock. One share of Common Stock shall be given for each Plan Share earned. Payments representing cash dividends (and earnings thereon) shall be made in cash. (c) WITHHOLDING. The Trustee shall withhold from any cash payment made under this Plan sufficient amounts to cover any applicable withholding and employment taxes, and if the amount of such cash payment is not sufficient, the Trustee shall require the Participant or Beneficiary to pay to the Trustee the amount required to be withheld as a condition of delivering the Plan Shares. The Trustee shall pay over to the Company or Affiliate which employs or employed such Participant any such amount withheld from or paid by the Participant or Beneficiary. (d) TIMING: EXCEPTION FOR 10% SHAREHOLDERS. Notwithstanding Subsections (a) and (b) above, no Plan Shares may be distributed prior to the date which is five (5) years from the Date of Conversion to the extent the Participant or Beneficiary, as the case may be, would after receipt of such Shares own in excess of ten percent (10%) of the issued and outstanding shares of Common Stock unless such action is approved in advance by a majority vote of disinterested directors of the Board. To the extent this limitation would delay the date on which a Participant receives Plan Shares, the Participant may elect to receive from the Trust, in lieu of such Plan Shares, the cash equivalent thereof. Any Plan Shares remaining undistributed solely by reason of the operation of this Subsection (d) shall be distributed to the Participant or his Beneficiary on the date which is five years from the Date of Conversion. (e) REGULATORY EXCEPTIONS. No Plan Shares shall be distributed unless and until all of the requirements of all applicable law and regulation shall have been fully complied with, including the receipt of approval of the Plan by the stockholders of the Company by such vote, if any, as may be required by applicable law and regulations. 7.04 VOTING OF PLAN SHARES. All shares of Common Stock held by the Trust (whether or not subject to a Plan Share Award) shall be voted by the Trustee in the same proportion as the trustee of the Company's Employee Stock Ownership Plan votes Common Stock held in the trust associated therewith, and in the absence of any such voting, shall be voted in the manner directed by the Board. -8- ARTICLE VIII MISCELLANEOUS 8.01 ADJUSTMENTS FOR CAPITAL CHANGES. (a) RECAPITALIZATIONS; STOCK SPLITS, ETC. The number and kind of shares which may be purchased under the Plan, and the number and kind of shares subject to outstanding Plan Share Awards, shall be proportionately adjusted for any increase, decrease, change or exchange of shares of Common Stock for a different number or kind of shares or other securities of the Company which results from a merger, consolidation, recapitalization, reorganization, reclassification, stock dividend, split-up, combination of shares, or similar event in which the number or kind of shares is changed without the receipt or payment of consideration by the Company. (b) TRANSACTIONS IN WHICH THE COMPANY IS NOT THE SURVIVING ENTITY. In the event of (i) the liquidation or dissolution of the Company, (ii) a merger or consolidation in which the Company is not the surviving entity, or (iii) the sale or disposition of all or substantially all of the Company's assets (any of the foregoing to be referred to herein as a "Transaction"), all outstanding Plan Share Awards shall be adjusted for any change or exchange of shares of Common Stock for a different number or kind of shares or other securities which results from the Transaction. (c) CONDITIONS AND RESTRICTIONS ON NEW, ADDITIONAL, OR DIFFERENT SHARES OR SECURITIES. If, by reason of any adjustment made pursuant to this Section, a Participant becomes entitled to new, additional, or different shares of stock or securities, such new, additional, or different shares of stock or securities shall thereupon be subject to all of the conditions and restrictions which were applicable to the shares pursuant to the Plan Share Award before the adjustment was made. In addition, the Committee shall have the discretionary authority to impose on the Shares subject to Plan Share Awards such restrictions as the Committee may deem appropriate or desirable, including but not limited to a right of first refusal, or repurchase option, or both of these restrictions. (d) OTHER ISSUANCES. Except as expressly provided in this Section, the issuance by the Company or an Affiliate of shares of stock of any class, or of securities convertible into shares of Common Stock or stock of another class, for cash or property or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, shall not affect, and no adjustment shall be made with respect to, the number or class of shares of Common Stock then subject to Plan Share Awards or reserved for issuance under the Plan. 8.02 AMENDMENT AND TERMINATION OF PLAN. The Board may, by resolution, at any time amend or terminate the Plan; provided that (i) the provisions of Section 6.04 may not be amended more than once every six months (other than to comport with changes in the Code, the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder), and -9- (ii) no amendment or termination of the Plan shall, without the written consent of a Participant, impair any rights or obligations under a Plan Share Award theretofore granted to the Participant. To the extent permitted under federal banking law and regulations (as determined by the Committee after soliciting the advice of counsel), the Board may amend the Plan without stockholder approval to provide that all Plan Share Awards (including previously-granted Plan Share Awards and Plan Share Awards made in accordance with Sections 6.04 and 6.05 hereof) shall become fully vested either in the event of a change in control of the Company or the Bank or the termination of the Participant's Continuous Service as a result of his or her retirement. The power to amend or terminate the Plan in accordance with this Section 8.02 shall include the power to direct the Trustee to return to the Company all or any part of the assets of the Trust, including shares of Common Stock held in the Plan Share Reserve. However, the termination of the Trust shall not affect a Participant's right to earn Plan Share Awards and to receive a distribution of Common Stock relating thereto, including earnings thereon, in accordance with the terms of this Plan and the grant by the Committee or the Board. 8.03 NONTRANSFERABILITY. Plan Share Awards and rights to Plan Shares shall not be transferable by a Participant, and during the lifetime of the Participant, Plan Shares may only be earned by and paid to the Participant who was notified in writing of the Award by the Committee pursuant to Section 6.03. 8.04 NO EMPLOYMENT OR OTHER RIGHTS. Neither the Plan nor any grant of a Plan Share Award or Plan Shares hereunder nor any action taken by the Trustee, the Committee or the Board in connection with the Plan shall create any right, either express or implied, on the part of any Employee or Director to continue in the service of the Company or an Affiliate thereof. 8.05 VOTING AND DIVIDEND RIGHTS. No Participant shall have any voting or dividend rights or other rights of a stockholder in respect of any Plan Shares covered by a Plan Share Award, except as expressly provided in Section 7.02 above, prior to the time said Plan Shares are actually distributed to him. 8.06 GOVERNING LAW. The Plan and Trust shall be governed and construed under the laws of the State of New York to the extent not preempted by Federal law. 8.07 EFFECTIVE DATE. The Plan become effective on June 26, 1995, following its approval by a favorable vote of stockholders of the Bank who owned at least a majority of the total votes eligible to be cast at the duly called meeting of the Bank's stockholders held on such date and in accordance with applicable laws. 8.08 TERM OF PLAN. This Plan shall remain in effect until the earlier of (i) termination by the Board, or (ii) the distribution of all assets of the Trust. Termination of the Plan shall not affect any Plan Share Awards previously granted, and such Awards shall remain valid and in effect until they have been earned and paid, or by their terms expire or are forfeited. -10- 8.09 TAX STATUS OF TRUST. It is intended that (i) the Trust associated with the Plan be treated as a grantor trust of the Company under the provisions of Section 671 ET SEQ. of the Internal Revenue Code, as the same may be amended from time to time, and (ii) that in accordance with Revenue Procedure 92-65, Participants have the status of general unsecured creditors of the Company, the Plan constitutes a mere unfunded promise to make benefit payments in the future, the Plan is unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended, and the Trust has been and will continue to be maintained in conformity with Revenue Procedure 92-64. -11- EX-4.2 3 FORMS OF PLAN SHARE AGREEMENTS EXHIBIT 4.2 ----------- Forms of Plan Share Agreements for Employees and Directors under the Plan CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN PLAN SHARE AGREEMENT (EMPLOYEE) ------------------------------- ______________________________________________________ ______-______-________ NAME OF PARTICIPANT SOCIAL SECURITY NUMBER ________________________________________________________________________________ STREET ADDRESS _________________________________ ___________________ ________________________ CITY STATE ZIP CODE This Plan Share Agreement is intended to set forth the terms and conditions on which a Plan Share Award consisting of restricted stock has been granted under the Carver Bancorp, Inc. Management Recognition Plan ("Plan"). Set forth below are the specific terms and conditions applicable to this Plan Share Award. Attached as Appendix A are the general terms and conditions of this Plan Share Award.
=================================================================================================================================== Plan Share Award Terms (A) (B) (C) (D) (E) =================================================================================================================================== Grant Date: - ----------------------------------------------------------------------------------------------------------------------------------- Class of shares awarded* Common Common Common Common Common - ----------------------------------------------------------------------------------------------------------------------------------- No. of shares awarded* - ----------------------------------------------------------------------------------------------------------------------------------- Vesting Date ===================================================================================================================================
*SUBJECT TO ADJUSTMENT AS PROVIDED IN THE PLAN AND THE GENERAL TERMS AND CONDITIONS SET FORTH IN APPENDIX A. By signing where indicated below, Carver grants this Plan Share Award upon the terms and conditions specified in this Plan Share Agreement, and the Participant acknowledges receipt of this Plan Share Agreement, including Appendix A, and agrees to observe and be bound by the terms and conditions set forth herein. CARVER BANCORP, INC. PARTICIPANT By____________________________________ _______________________________ NAME:______________________ DATE:_____________________ TITLE:____________________ - -------------------------------------------------------------------------------- INSTRUCTIONS: This page should be completed by or on behalf of the Committee. Any blank space intentionally left blank should be crossed out. A Plan Share Award consists of a number of shares of restricted stock with uniform terms and conditions. Where Plan Share Awards are granted on the same date with varying terms and conditions (for example, varying vesting dates), the Plan Share Awards should be recorded as a series of grants each with its own uniform terms and conditions. APPENDIX A ---------- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN PLAN SHARE AGREEMENT (EMPLOYEE) ------------------------------- GENERAL TERMS AND CONDITIONS SECTION 1. OWNERSHIP OF SHARES. The shares of Common Stock, par value $.01 per share, of Carver Bancorp, Inc. covered by this Plan Share Award are held in trust by Marine Midland Bank, the Trustee of the Plan, for your benefit until such time as they are distributed to you or, if earlier, until you forfeit your rights to the Plan Shares. SECTION 2. VESTING. The Plan Shares shall become vested and available for distribution to the Participant as of the specified vesting date(s); PROVIDED, HOWEVER, that in the event that a Participant granted Plan Shares hereunder ceases to be an Employee due to death or Disability prior to a vesting date, any Plan Shares granted to such Participant that have not previously become vested shall be deemed vested as of the date of such Participant's death or Disability. SECTION 3. FORFEITURES. In the event that a Participant ceases to be an Employee prior to a vesting date for any reason other than a termination of service following death or Disability, any Plan Shares granted to such Participant that have not previously become vested shall be forfeited. Following such a forfeiture, the Participant will have no rights whatsoever with respect to the Plan Shares forfeited. SECTION 4. DIVIDENDS. At the time the Plan Shares are paid to a Participant, any cash dividends declared and paid with respect to Plan Shares granted hereunder that have not been forfeited, along with any net earnings with respect thereto, shall be paid to the Participant in cash. In addition, the Participant shall be granted a number of shares of Common Stock equal to the stock dividends declared and paid with respect to Plan Shares granted hereunder that have not been forfeited. No fractional shares shall be distributed. SECTION 5. VOTING RIGHTS. All shares of Common Stock held by the trust established for the Management Recognition Plan, whether or not subject to a Plan Share Award, shall be voted by the trustee in the same proportion as the trustee of Carver's Employee Stock Ownership Plan ("ESOP") votes Common Stock held in the ESOP trust, and in the absence of any such voting, shall be voted in the manner directed by the Board of Directors. SECTION 6. DISTRIBUTION UPON VESTING. As soon as practicable following the date any Plan Shares granted hereunder become vested pursuant to Section 2 of this Agreement, Carver will issue to the Participant, or his or her Beneficiary entitled to such Plan Shares, a stock certificate evidencing ownership of the shares. Any additional shares attributable to stock dividends paid with respect to the Plan Shares then being distributed pursuant to this Section 6 shall also be distributed and shall be evidenced by such stock certificate. No fractional shares shall be distributed. SECTION 7. REGISTRATION OF SHARES. Carver's obligation to deliver shares pursuant to this Agreement shall, if the Committee so requests, be conditioned upon the receipt of a representation as to the investment intention of the Participant or his or her Beneficiary to whom such shares are to be delivered, in such form as the Committee shall determine to be necessary or advisable to comply with the provisions of applicable federal, state or local law. It may be provided that any such representation shall become inoperative upon a registration of the shares or upon the occurrence of any other event eliminating the necessity of such representation. Carver shall not be required to deliver any shares under the Plan prior to (a) the admission of such shares to listing on any stock exchange on which shares may then be listed, or (b) the completion of such registration or other qualification under any state or federal law, rule or regulation as the Committee shall determine to be necessary or advisable. SECTION 8. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement, nor any action of the Board or Committee with respect to this Agreement, shall be held or construed to confer upon the Participant any right to a continuation of employment by Carver or Carver Federal Savings Bank. The Participant may be dismissed or otherwise dealt with as though this Agreement had not been entered into. SECTION 9. NOTICES. Any communication required or permitted to be given under the Plan, including any notice, direction, designation, comment, instruction, objection or waiver, shall be in writing and shall be deemed to have been given at such time as it is personally delivered or five (5) days after mailing if mailed, postage prepaid, by registered or certified mail, return receipt requested, addressed to such party at the address listed below, or at such other address as one such party may by written notice specify to the other: (a) If to the Committee: Carver Bancorp, Inc. 75 West 125th Street New York, New York 10027 Attention: Management Recognition Plan Committee ------------------------------------- (b) If to the Participant, to his or her address as shown in Carver's personnel records. SECTION 10. NO ASSIGNMENT. Prior to vesting, the Plan Shares granted hereunder shall not be subject in any manner to anticipation, alienation or assignment, nor shall such Plan Shares be liable for or subject to debts, contracts, liabilities, engagements or torts, nor shall they be transferable by the Participant other than by will or by the laws of descent and distribution. During the Participant's lifetime, the Plan Shares shall be distributable only to the Participant. This Section 10 shall not prohibit the Participant from designating, in the form attached hereto as Appendix B, a Beneficiary or Beneficiaries to receive his or her Plan Shares in the event of such Participant's death prior to vesting and distribution. SECTION 11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and shall be binding upon Carver and the Participant and their respective heirs, successors and assigns. SECTION 12. CONSTRUCTION OF LANGUAGE. Whenever appropriate in this Agreement, words used in the singular may be read in the plural, words used in the plural may be read in the singular, and words importing the masculine gender may be read as referring equally to the feminine or the neuter. Any reference to a section shall be a reference to a section of this Agreement, unless the context clearly indicates otherwise. Capitalized terms not specifically defined herein shall have the meanings assigned to them under the Plan. SECTION 13. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of laws principles thereof, except to the extent that such laws are preempted by the federal laws of the United States of America. SECTION 14. AMENDMENT. This Agreement may be amended, in whole or in part and in any manner not inconsistent with the provisions of the Plan, at any time and from time to time, by written agreement between the Participant and Carver. SECTION 15. PLAN PROVISIONS CONTROL. This Agreement, and the rights and obligations created hereunder, shall be subject to all of the terms and conditions of the Plan. In the event of any conflict between the provisions of the Plan and the provisions of this Agreement, the terms of the Plan, which are incorporated herein by reference, shall control. By signing this Agreement, the Participant acknowledges receipt of a copy of the Plan. SECTION 16. LEGAL MATTERS. The Plan Share Award made to the Participant is a form of contingent compensation that involves publicly traded securities. As such, there are certain federal, state and local tax and securities laws that may apply. In particular, the Participant may be liable for the payment of federal, state and local income taxes with respect to the value of the Plan Shares granted or distributed to the Participant under the Plan; the Participant may have to report beneficial ownership of such shares (even while held by the Trustee) to the appropriate securities regulators; and acceptance of legal ownership of such shares or subsequent disposition of them may be subject to limitations under applicable securities laws. The Participant should consult with, and rely upon, his or her own legal counsel regarding the application of such laws. SECTION 17. ACCEPTANCE BY THE PARTICIPANT. By executing this Agreement and returning a fully executed copy hereof to the Committee at the address specified in Section 9, the Participant signifies acceptance of the terms and conditions of this Plan Share Award. If a fully executed copy of this Agreement is not received by the Committee within forty-five (45) days after the later of the Grant Date or the date this Agreement is received by the Participant, the Committee may revoke the Plan Share Award, and thereby avoid all obligations hereunder. -2- APPENDIX B ---------- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN BENEFICIARY DESIGNATION ----------------------- - -------------------------------------------------------------------------------- IMPORTANT INFORMATION AND INSTRUCTIONS PLEASE READ CAREFULLY Use this form to designate the Beneficiary(ies) to receive your right to receive shares of common stock ("Shares") of Carver Bancorp, Inc. ("Carver") pursuant to a Plan Share Award granted to you under the Carver Bancorp, Inc. Management Recognition Plan ("Plan") if you should die before receiving a distribution of such shares. You should give your Beneficiary(ies) a copy of this completed form. This Beneficiary Designation should be completed and personally delivered or mailed by registered or certified mail, return receipt requested, to Carver Bancorp, Inc., 75 West 125th Street, New York, New York 10027, Attention: Human Resources Department. The effective date of the designations made herein will be the date this Beneficiary Designation is received by the Human Resources Department. Except as specifically provided to the contrary herein, capitalized terms shall have the meanings assigned to them under the Plan. This Beneficiary Designation is subject to all of the terms and conditions of the Plan. - -------------------------------------------------------------------------------- 1. DESIGNATION. [COMPLETE SECTIONS 1(a) AND 1(b). WRITE IN ALL OF THE INFORMATION REQUESTED. IF NO PERCENTAGE INTERESTS ARE SPECIFIED, EACH BENEFICIARY IN THE SAME CLASS OF BENEFICIARIES (PRIMARY OR CONTINGENT) WILL HAVE AN EQUAL INTEREST. IF ANY DESIGNATED BENEFICIARY PREDECEASES YOU, THE INTERESTS OF EACH OF THE REMAINING BENEFICIARIES IN THE SAME CLASS (PRIMARY OR CONTINGENT) SHALL BE INCREASED PROPORTIONATELY.] (a) PRIMARY BENEFICIARY(IES). I hereby name the following person or persons as my primary Beneficiary(ies) to receive the Shares granted to me pursuant to my Plan Share Award on ______________ under the Plan, if I should die before exercising such Shares. I reserve the right to change or revoke this designation at any time prior to my death without the consent of any person.
Date of Percentage Name and Address Social Security Number Relationship Birth Interest _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________ _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________
(b) CONTINGENT BENEFICIARY(IES). I hereby designate the following person or persons as my contingent Beneficiary(ies) to receive the Shares described above if all of my primary Beneficiary(ies) designated in Section 1(a) above should die before me or before such amounts are distributed. I reserve the right to change or revoke this designation at any time prior to my death without the consent of any person:
Date of Percentage Name and Address Social Security Number Relationship Birth Interest _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________ _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________
2. EFFECTIVENESS OF DESIGNATION. I understand that the Beneficiary designations made on this form shall be effective only if this form is properly completed and received by the Human Resources Department prior to my death. I also understand that an effective Beneficiary designation revokes all previous designations and that this designation is subject to all of the terms and conditions of the Plan. Signature:_________________________________ Date:_______________________ Address:___________________________________________________________________ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * HUMAN RESOURCES DEPARTMENT (ON BEHALF OF THE COMMITTEE) Received [CHECK ONE]: / /By Hand / /By Mail By___________________________________ Date of Receipt:__________________ Authorized Signature -1- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN PLAN SHARE AGREEMENT (DIRECTOR) ------------------------------- ______________________________________________________ ______-______-________ NAME OF PARTICIPANT SOCIAL SECURITY NUMBER ________________________________________________________________________________ STREET ADDRESS _________________________________ ___________________ ________________________ CITY STATE ZIP CODE This Plan Share Agreement is intended to set forth the terms and conditions on which a Plan Share Award consisting of restricted stock has been granted under the Carver Bancorp, Inc. Management Recognition Plan ("Plan"). Set forth below are the specific terms and conditions applicable to this Plan Share Award. Attached as Appendix A are the general terms and conditions of this Plan Share Award.
=================================================================================================================================== Plan Share Award Terms (A) (B) (C) (D) (E) =================================================================================================================================== Grant Date: - ----------------------------------------------------------------------------------------------------------------------------------- Class of shares awarded* Common Common Common Common Common - ----------------------------------------------------------------------------------------------------------------------------------- No. of shares awarded* - ----------------------------------------------------------------------------------------------------------------------------------- Vesting Date ===================================================================================================================================
*SUBJECT TO ADJUSTMENT AS PROVIDED IN THE PLAN AND THE GENERAL TERMS AND CONDITIONS SET FORTH IN APPENDIX A. By signing where indicated below, Carver grants this Plan Share Award upon the terms and conditions specified in this Plan Share Agreement, and the Participant acknowledges receipt of this Plan Share Agreement, including Appendix A, and agrees to observe and be bound by the terms and conditions set forth herein. CARVER BANCORP, INC. PARTICIPANT By____________________________________ _______________________________ NAME:______________________ DATE:_____________________ TITLE:____________________ - -------------------------------------------------------------------------------- INSTRUCTIONS: This page should be completed by or on behalf of the Committee. Any blank space intentionally left blank should be crossed out. A Plan Share Award consists of a number of shares of restricted stock with uniform terms and conditions. Where Plan Share Awards are granted on the same date with varying terms and conditions (for example, varying vesting dates), the Plan Share Awards should be recorded as a series of grants each with its own uniform terms and conditions. APPENDIX A ---------- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN PLAN SHARE AGREEMENT (DIRECTOR) ------------------------------- GENERAL TERMS AND CONDITIONS SECTION 1. OWNERSHIP OF SHARES. The shares of Common Stock, par value $.01 per share, of Carver Bancorp, Inc. covered by this Plan Share Award are held in trust by Marine Midland Bank, the Trustee of the Plan, for your benefit until such time as they are distributed to you or, if earlier, until you forfeit your rights to the Plan Shares. SECTION 2. VESTING. The Plan Shares shall become vested and available for distribution to the Participant as of the specified vesting date(s); PROVIDED, HOWEVER, that in the event that a Participant granted Plan Shares hereunder ceases to be a Director due to death or Disability prior to a vesting date, any Plan Shares granted to such Participant that have not previously become vested shall be deemed vested as of the date of such Participant's death or Disability. SECTION 3. FORFEITURES. In the event that a Participant ceases to be a Director prior to a vesting date for any reason other than a termination of service following death or Disability, any Plan Shares granted to such Participant that have not previously become vested shall be forfeited. Following such a forfeiture, the Participant will have no rights whatsoever with respect to the Plan Shares forfeited. SECTION 4. DIVIDENDS. At the time the Plan Shares are paid to a Participant, any cash dividends declared and paid with respect to Plan Shares granted hereunder that have not been forfeited, along with any net earnings with respect thereto, shall be paid to the Participant in cash. In addition, the Participant shall be granted a number of shares of Common Stock equal to the stock dividends declared and paid with respect to Plan Shares granted hereunder that have not been forfeited. No fractional shares shall be distributed. SECTION 5. VOTING RIGHTS. All shares of Common Stock held by the trust established for the Management Recognition Plan, whether or not subject to a Plan Share Award, shall be voted by the trustee in the same proportion as the trustee of Carver's Employee Stock Ownership Plan ("ESOP") votes Common Stock held in the ESOP trust, and in the absence of any such voting, shall be voted in the manner directed by the Board of Directors. SECTION 6. DISTRIBUTION UPON VESTING. As soon as practicable following the date any Plan Shares granted hereunder become vested pursuant to Section 2 of this Agreement, Carver will issue to the Participant, or his or her Beneficiary entitled to such Plan Shares, a stock certificate evidencing ownership of the shares. Any additional shares attributable to stock dividends paid with respect to the Plan Shares then being distributed pursuant to this Section 6 shall also be distributed and shall be evidenced by such stock certificate. No fractional shares shall be distributed. SECTION 7. REGISTRATION OF SHARES. Carver's obligation to deliver shares pursuant to this Agreement shall, if the Committee so requests, be conditioned upon the receipt of a representation as to the investment intention of the Participant or his or her Beneficiary to whom such shares are to be delivered, in such form as the Committee shall determine to be necessary or advisable to comply with the provisions of applicable federal, state or local law. It may be provided that any such representation shall become inoperative upon a registration of the shares or upon the occurrence of any other event eliminating the necessity of such representation. Carver shall not be required to deliver any shares under the Plan prior to (a) the admission of such shares to listing on any stock exchange on which shares may then be listed, or (b) the completion of such registration or other qualification under any state or federal law, rule or regulation as the Committee shall determine to be necessary or advisable. SECTION 8. NO RIGHT TO CONTINUED BOARD MEMBERSHIP. Nothing in this Plan Share Agreement nor any action of the Board or the Committee with respect to this Plan Share Agreement shall be held or construed to confer upon you any right to a continuation of service with Carver or any of its affiliates. You may be dismissed or otherwise dealt with to the same extent as though this Plan Share Award had not been made. SECTION 9. NOTICES. Any communication required or permitted to be given under the Plan, including any notice, direction, designation, comment, instruction, objection or waiver, shall be in writing and shall -1- be deemed to have been given at such time as it is personally delivered or five (5) days after mailing if mailed, postage prepaid, by registered or certified mail, return receipt requested, addressed to such party at the address listed below, or at such other address as one such party may by written notice specify to the other: (a) If to the Committee: Carver Bancorp, Inc. 75 West 125th Street New York, New York 10027 Attention: MANAGEMENT RECOGNITION PLAN COMMITTEE ------------------------------------- (b) If to the Participant, to his or her address as shown in Carver's personnel records. SECTION 10. NO ASSIGNMENT. Prior to vesting, the Plan Shares granted hereunder shall not be subject in any manner to anticipation, alienation or assignment, nor shall such Plan Shares be liable for or subject to debts, contracts, liabilities, engagements or torts, nor shall they be transferable by the Participant other than by will or by the laws of descent and distribution. During the Participant's lifetime, the Plan Shares shall be distributable only to the Participant. This Section 10 shall not prohibit the Participant from designating, in the form attached hereto as Appendix B, a Beneficiary or Beneficiaries to receive his Plan Shares in the event of such Participant's death prior to vesting and distribution. SECTION 11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and shall be binding upon Carver and the Participant and their respective heirs, successors and assigns. SECTION 12. CONSTRUCTION OF LANGUAGE. Whenever appropriate in this Agreement, words used in the singular may be read in the plural, words used in the plural may be read in the singular, and words importing the masculine gender may be read as referring equally to the feminine or the neuter. Any reference to a Section shall be a reference to a Section of this Agreement, unless the context clearly indicates otherwise. Capitalized terms not specifically defined herein shall have the meanings assigned to them under the Plan. SECTION 13. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of laws principles thereof, except to the extent that such laws are preempted by the federal laws of the United States of America. SECTION 14. AMENDMENT. This Agreement may be amended, in whole or in part and in any manner not inconsistent with the provisions of the Plan, at any time and from time to time, by written agreement between the Participant and Carver. SECTION 15. PLAN PROVISIONS CONTROL. This Agreement, and the rights and obligations created hereunder, shall be subject to all of the terms and conditions of the Plan. In the event of any conflict between the provisions of the Plan and the provisions of this Agreement, the terms of the Plan, which are incorporated herein by reference, shall control. By signing this Agreement, the Participant acknowledges receipt of a copy of the Plan. SECTION 16. LEGAL MATTERS. The Plan Share Award made to the Participant is a form of contingent compensation that involves publicly traded securities. As such, there are certain federal, state and local tax and securities laws that may apply. In particular, the Participant may be liable for the payment of federal, state and local income taxes with respect to the value of the Plan Shares granted or distributed to the Participant under the Plan; the Participant may have to report beneficial ownership of such shares (even while held by the Trustee) to the appropriate securities regulators; and acceptance of legal ownership of such shares or subsequent disposition of them may be subject to limitations under applicable securities laws. The Participant should consult with, an d rely upon, his or her own legal counsel regarding the application of such laws. SECTION 17. ACCEPTANCE BY THE PARTICIPANT. By executing this Agreement and returning a fully executed copy hereof to the Committee at the address specified in Section 9, the Participant signifies acceptance of the terms and conditions of this Plan Share Award. If a fully executed copy of this Agreement is not received by the Committee within forty-five (45) days after the later of the Grant Date or the date this Agreement is received by the Participant, the Committee may revoke the Plan Share Award, and thereby avoid all obligations hereunder. -2- APPENDIX B ---------- CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN BENEFICIARY DESIGNATION - -------------------------------------------------------------------------------- IMPORTANT INFORMATION AND INSTRUCTIONS PLEASE READ CAREFULLY Use this form to designate the Beneficiary(ies) to receive your right to receive shares of common stock ("Shares") of Carver Bancorp, Inc. ("Carver") pursuant to a Plan Share Award granted to you under the Carver Bancorp, Inc. Management Recognition Plan ("Plan") if you should die before receiving a distribution of such shares. You should give your Beneficiary(ies) a copy of this completed form. This Beneficiary Designation should be completed and personally delivered or mailed by registered or certified mail, return receipt requested, to Carver Bancorp, Inc., 75 West 125th Street, New York, New York 10027, Attention: Human Resources Department. The effective date of the designations made herein will be the date this Beneficiary Designation is received by the Human Resources Department. Except as specifically provided to the contrary herein, capitalized terms shall have the meanings assigned to them under the Plan. This Beneficiary Designation is subject to all of the terms and conditions of the Plan. - -------------------------------------------------------------------------------- 1. DESIGNATION. [COMPLETE SECTIONS 1(a) AND 1(b). WRITE IN ALL OF THE INFORMATION REQUESTED. IF NO PERCENTAGE INTERESTS ARE SPECIFIED, EACH BENEFICIARY IN THE SAME CLASS OF BENEFICIARIES (PRIMARY OR CONTINGENT) WILL HAVE AN EQUAL INTEREST. IF ANY DESIGNATED BENEFICIARY PREDECEASES YOU, THE INTERESTS OF EACH OF THE REMAINING BENEFICIARIES IN THE SAME CLASS (PRIMARY OR CONTINGENT) SHALL BE INCREASED PROPORTIONATELY.] (a) PRIMARY BENEFICIARY(IES). I hereby name the following person or persons as my primary Beneficiary(ies) to receive the Shares granted to me pursuant to my Plan Share Award on ______________ under the Plan, if I should die before exercising such Shares. I reserve the right to change or revoke this designation at any time prior to my death without the consent of any person.
Date of Percentage Name and Address Social Security Number Relationship Birth Interest _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________ _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________
(b) CONTINGENT BENEFICIARY(IES). I hereby designate the following person or persons as my contingent Beneficiary(ies) to receive the Shares described above if all of my primary Beneficiary(ies) designated in Section 1(a) above should die before me or before such amounts are distributed. I reserve the right to change or revoke this designation at any time prior to my death without the consent of any person:
Date of Percentage Name and Address Social Security Number Relationship Birth Interest _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________ _______________________________ ______-_____-______ ____________ __________ _____________ _______________________________
2. EFFECTIVENESS OF DESIGNATION. I understand that the Beneficiary designations made on this form shall be effective only if this form is properly completed and received by the Human Resources Department prior to my death. I also understand that an effective Beneficiary designation revokes all previous designations and that this designation is subject to all of the terms and conditions of the Plan. Signature:_________________________________ Date:_______________________ Address:___________________________________________________________________ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * HUMAN RESOURCES DEPARTMENT (ON BEHALF OF THE COMMITTEE) Received [CHECK ONE]: / /By Hand / /By Mail By___________________________________ Date of Receipt:__________________ Authorized Signature -1- EX-5 4 OPINION RE: LEGALITY EXHIBIT 5./23.1 --------------- Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the legality of the securities being registered Consent of Thacher Proffitt & Wood [THACHER PROFFITT & WOOD LETTERHEAD] Writer's Direct Dial 212-912-7429 March 21, 1997 Carver Bancorp, Inc. 75 West 125th Street New York, New York 10027 Re: Carver Bancorp, Inc. Management Recognition Plan ------------------------------------------------ Dear Sirs: We have acted as counsel for Carver Bancorp, Inc., a Delaware corporation ("Corporation"), in connection with the filing of a registration statement on Form S-8 under the Securities Act of 1933, as amended ("Registration Statement") with respect to 69,431 shares of its common stock, par value $.01 per share ("Shares"), which may be issued pursuant to the Carver Bancorp, Inc. Management Recognition Plan ("Plan"). In rendering the opinion set forth below, we do not express any opinion concerning law other than the federal law of the United States and the corporate law of the States of New York and Delaware. We have examined originals or copies, certified or otherwise identified, of such documents, corporate records and other instruments as we have deemed necessary or advisable for purposes of this opinion. As to matters of fact, we have examined and relied upon the Plan described above and, where we have deemed appropriate, representations or certificates of officers of the Corporation or public officials. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all documents submitted to us as copies. Based on the foregoing, we are of the opinion that the Shares which are being registered pursuant to the Registration Statement have been duly authorized and, when issued and paid for in accordance with the terms of the Plan, such Shares will be validly issued, fully paid and non-assessable. In rendering the opinion set forth above, we have not passed upon and do not purport to pass upon the application of "doing business" or securities or "blue-sky" laws of any jurisdiction (except federal securities law). Carver Bancorp, Inc. March 21, 1997 Page 2. This opinion is given solely for the benefit of the Corporation and purchasers of shares under the Plan, and no other person or entity is entitled to rely hereon without express written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our Firm's name therein. Very truly yours, THACHER PROFFITT & WOOD By /s/ Lisa M. Miller ------------------ Lisa M. Miller EX-23.2 5 CONSENT OF MITCHELL & TITUS, LLP EXHIBIT 23.2 ------------ Consent of Mitchell & Titus, LLP [Mitchell & Titus, LLP Letterhead] The Board of Directors Carver Bancorp, Inc. We consent to incorporation by reference in the Registration Statement on Form S-8 of Carver Bancorp, Inc. of our report dated May 31, 1996, relating to the consolidated statements of consolidated financial condition of Carver Federal Savings Bank and subsidiaries as of March 31, 1996, and the related consolidated statements of income, stockholders' equity and cash flows for the year ended March 31, 1996, which report is incorporated by reference in the March 31, 1996 Annual Report on Form 10-K of Carver Federal Savings Bank and subsidiaries. /s/ Mitchell & Titus, LLP ------------------------- Mitchell & Titus, LLP New York, New York March 17, 1997 EX-23.3 6 CONSENT OF RIDICS & CO., LLC EXHIBIT 23.3 ------------ Consent of Radics & Co., LLC CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to incorporation by reference in the Registration Statement on Form S-8 of Carver Bancorp, Inc., of our report dated May 12, 1995, relating to the consolidated statements of financial condition of Carver Federal Savings Bank and subsidiary as of March 31, 1995, and the related consolidated statements of income, changes in stockholders' equity and cash flows for each of the years in the two-year period ended March 31, 1995, which report is incorporated by reference in the March 31, 1996 Annual Report on Form 10-K of Carver Bancorp, Inc. /s/ Radics & Co., LLC --------------------- Radics & Co., LLC (formerly Stephen P. Radics & Co.) Pine Brook, New Jersey March 19, 1997 EXPLANATORY NOTE This registration statement includes or is deemed to include two forms of prospectus: one to be sent or given to certain participants (the "Participant Prospectus") in the Carver Bancorp, Inc. Management Recognition Plan ("Plan") pursuant to Part I of Form S-8 and Rule 428(b)(1) under the Securities Act of 1933, as amended ("Securities Act"), and one to be used in connection with certain reoffers and resales (the "Resale Prospectus") of shares of Common Stock, par value $0.01 per share, of Carver Bancorp, Inc. by participants in the Plan, as contemplated by Instruction C to Form S-8 under the Securities Act. The form of Participant Prospectus has been omitted from this registration statement as permitted by Part I of Form S-8. The form of Resale Prospectus is included herein immediately following this page. CROSS-REFERENCE SHEET (Showing location of Information Requested by Form S-8)
ITEMS REQUIRED BY PART I OF FORM S-3 S-3 ITEM PROSPECTUS HEADING 1. Forepart of Registration Statement and Front Cover Page of Prospectus; Outside Front Cover Page of Prospectus this Cross-Reference Sheet 2. Inside Front and Outside Back Cover Pages Available Information; of Prospectus Incorporation of Certain Documents by Reference; Table of Contents 3. Summary Information, Risk Factors and Available Information; Risk Factors Ratio of Earnings to Fixed Charges 4. Use of Proceeds Use of Proceeds 5. Determination of Offering Price Determination of Offering Price 6. Dilution Not Applicable 7. Selling Security Holders Selling Security Holders 8. Plan of Distribution Plan of Distribution 9. Description of Securities to be Registered Not Applicable 10. Interests of Named Experts and Counsel Legal Opinions; Experts 11. Material Changes Not Applicable 12. Incorporation of Certain Documents by Incorporation of Certain Documents Reference by Reference 13. Disclosure of Commission Position on Indemnification of Directors and Indemnification for Securities Act Liabilities Officers
PROSPECTUS CARVER BANCORP, INC. 69,431 SHARES OF COMMON STOCK ($0.01 PAR VALUE) OFFERED OR TO BE OFFERED BY CERTAIN SELLING SHAREHOLDERS OF CARVER BANCORP, INC. FOLLOWING THEIR ACQUISITION UNDER THE CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN Certain holders of Carver Bancorp, Inc. (the "Company") common stock ("Common Stock") may offer, from time to time, up to 69,431 shares of Common Stock which they acquired under the Carver Bancorp, Inc. Management Recognition Plan ("Plan"). The shares may be sold directly by the holder to purchasers or may be given by the holder to donees, such as members of the holder's family or charitable organizations, and then sold by the donee to the purchasers. Sales may occur through the facilities of the National Association of Securities Dealers Automated Quotation ("Nasdaq") National Market System, on which the shares are quoted, or may occur privately. This Prospectus relates to 69,431 authorized shares of Common Stock reserved for issuance under the Plan. In addition, this Prospectus covers an indeterminate number of additional shares of Common Stock that, by reason of certain events specified in the Plan, may be acquired by the selling shareholders under the Plan. Such shares are, at the date hereof, either unissued shares or are held as treasury stock by the Company. It is suggested that this Prospectus be retained for future reference. THIS PROSPECTUS CONTAINS A DISCUSSION OF MATERIAL RISKS IN CONNECTION WITH THE PURCHASE OF SHARES OF THE COMPANY. SEE "RISK FACTORS" AT PAGE 3. ------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS ANY SUCH COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SHARES OF COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE SAVINGS ASSOCIATION INSURANCE FUND OR THE BANK INSURANCE FUND OF THE FEDERAL DEPOSIT INSURANCE CORPORATION, OR BY ANY OTHER GOVERNMENT AGENCY. ------------- The date of this prospectus is March 21, 1997. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended ("Exchange Act") and, in accordance therewith, files reports and other information with the Securities and Exchange Commission (the "Commission"). Information, as to particular dates, concerning directors and officers, their remuneration, options granted to them, the principal holders of the Company's Common Stock, and any material interest of such persons in transactions with the Company is disclosed in proxy statements distributed to shareholders of the Company and filed with the Commission. Such reports, proxy statements, and other information can be inspected and copied at the offices of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549; at Public Reference Facilities in the Chicago Regional Office, 500 West Madison Street, Chicago, Illinois 60661; and at the New York Regional Office in Five World Trade Center, New York, New York 10048. Copies of such material can be obtained from the Public Reference Section of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549 at prescribed rates. The Company's Common Stock is traded in the over-the-counter market and is quoted on the Nasdaq National Market System. Reports, proxy material and other information concerning the Company may also be inspected at the offices of the National Association of Securities Dealers, 1735 K Street N.W., Washington D.C. 20006-1500. The Company has filed with the Commission in Washington D.C., a Registration Statement under the Securities Act of 1933, as amended, with respect to the securities to which this prospectus relates. As permitted by the rules and regulations of the Commission, this prospectus does not contain all the information set forth in the Registration Statement, including the exhibits thereto, which may be obtained from the Public Reference Section of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549, upon payment of the prescribed fees. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE There are incorporated by reference herein the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 1996, September 30, 1996 and December 31, 1996, filed by the Company pursuant to Section 13 of the Exchange Act. The description of the class of securities offered under the Plan is described in the Registration Statement on Form S-4, and any amendments thereto, filed with the Commission by the Company on June 7, 1996. Such description is incorporated by reference herein. All documents filed by the Company pursuant to Sections 13, 14, or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the securities made hereby are incorporated herein by reference, and such documents shall be deemed to be a part hereof from the date 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 Prospectus 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 -2- statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom this Prospectus is delivered, upon request of any such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits to such documents). Written requests shall be directed to Raymond L. Bruce, Esq., Vice President, Corporate Counsel and Secretary, Carver Bancorp, Inc., 75 West 125th Street, New York, New York 10027-4512. Telephone requests may be directed to (212) 876-4747. The principal executive offices of the Company are located at 75 West 125th Street, New York, New York 10027-4512. The telephone number at such offices is (212) 876- 4747. RISK FACTORS The following considerations, in addition to those discussed elsewhere in this Prospectus, should be considered by investors in deciding whether to purchase the Common Stock offered hereby. POTENTIAL IMPACT OF CHANGES IN INTEREST RATES. The Company is the holding company for Carver Federal Savings Bank (the "Bank"), a savings institution. The Company's results of operations are derived almost entirely from the operations of the Bank and are heavily dependent on its net interest income. Net interest income is the difference between the interest income on earning assets -- such as loans, mortgage-backed and mortgage-related securities and investment securities -- and the interest expense on interest-bearing liabilities, such as deposits and other borrowings. The Bank's net interest income, the primary component of its net income, is subject to substantial risk due to changes in interest rates, particularly if there is a substantial variation in the timing between the repricing of its assets and the liabilities which fund them. At March 31, 1996, the Bank's total interest-bearing liabilities maturing or repricing within one year exceeded its total earning assets maturing or repricing in the same time period by $97,608, representing a one-year interest rate sensitivity gap as a percentage of total assets of positive 28.14%. As a result of the Bank's positive gap position, the Bank's net interest income could be adversely affected by falling interest rates, and positively affected by rising interest rates. Increases in the level of interest rates may adversely affect the value of the Bank's debt securities and other earning assets and the ability to realize gains on the sale of such assets. Generally, the value of fixed rate instruments fluctuates inversely with changes in interest rates. As a result, increases in interest rates could result in decreases in the carrying value of interest-earning assets which could adversely affect the Bank's results of operations if sold or, in the case of interest-earning assets classified as available for sale, the Bank's equity if retained. Increases in interest rates also can affect the type (fixed-rate or adjustable-rate) and amount of loans -3- originated by the Bank and the average life of loans and securities, which can adversely impact the yields earned on the Bank's loan and securities portfolio. MARKET AREA AND COMPETITION. The Bank's primary market area for deposits consists of the areas served by its eight branches, and the Bank considers its lending market to include Bronx, Kings, New York, Queens and Richmond counties, together comprising New York City, and Lower Westchester and Nassau Counties, New York. The Bank's branches are primarily located in economically disadvantaged areas of New York City, which have traditionally been characterized by high unemployment, low income and low levels of home ownership. The majority of the Bank's branches are located in areas where the number of persons below the poverty line is greater than 27% of the population and constitutes as much as 41% of the population in some areas according to 1990 census figures. The number of persons on some form of public assistance exceeds 30% of the population in these areas according to the same census. Although the New York metropolitan area enjoys a fairly diversified economy, the manufacturing base which has traditionally provided jobs to residents of the communities served by the Bank has been steadily shrinking, and the other sectors of the economy have failed to provide comparable employment opportunities. The New York metropolitan area has also recently experienced an economic downturn which raised general unemployment rates throughout the region and which particularly affected the communities served by the Bank. Although the New York metropolitan area is generally believed to have begun recovering from the downturn, the communities served by the Bank have historically lagged in such recoveries. Additionally, the area experienced a general decline in real estate values, particularly in commercial properties and land, as well as in the cooperative and condominium markets, as represented by appraisals available at that time that reflected sharp decreases in property values. These factors contributed to a significant decline in the Bank's asset quality in 1991 and 1992. During the past three years, the Bank's expanded loan work-out/resolution efforts have successfully contributed toward reducing non-performing assets to manageable levels. Although there are a number of encouraging signs in the local economy and the Bank's real estate markets, it is unclear how these factors will affect the Bank's asset quality in the future. These negative trends have stabilized somewhat in more recent periods. Although the Bank continues to emphasize one- to four-family residential loans, the economic conditions affecting the Bank's market areas and rises in interest rates during the second half of 1994 resulted in reduced loan demand. During these periods of reduced loan demand, the Bank increased its emphasis on investing principally in mortgage-backed securities to maintain management's strategy of asset growth. More recently, however, decreases in interest rates coupled with the Bank's new wholesale loan programs with area brokers and mortgage bankers have resulted in increased loan demand. If current economic conditions deteriorate and loan demand weakens, no assurances can be made that the Bank will be able to sustain or increase its level of originations of mortgage loans in its local market areas. There can be no assurances that conditions in the regional economy, national economy or real estate market in general will not deteriorate. A weakness or deterioration in the economic conditions of the Bank's primary -4- lending area in the future may result in the Bank experiencing increases in non-performing loans and non-performing assets. Such increases would likely result in higher provisions for possible loan losses, reduced levels of earning assets, which would lower the level of net interest income, and possibly result in higher levels of other real estate owned expense. Although the Bank's branches are located in areas that have been historically undeserved by other financial institutions, the Bank is facing increasing competition for deposits and residential mortgage lending in its immediate market areas. Management believes that this competition has become more intense as a result of an increased examination emphasis by federal banking regulators on financial institutions' fulfillment of their responsibilities under the Community Reinvestment Act. Many of the Bank's competitors have substantially greater resources than the Bank and offer a wider array of financial services and products than the Bank. The Bank believes that it can compete with these institutions by offering a competitive range of services as well as through the personalized attention and community commitment which has always been the Bank's hallmark. DIVERSIFIED LENDING RISK. The Bank's loan portfolio consists primarily of conventional first mortgage loans secured by owner occupied one- to four-family residences, and, to a lesser extent, multi-family residences, commercial real estate and construction and land loans. Multi-family, commercial real estate, construction and land development, and consumer and other loans are generally considered to involve a higher degree of credit risk than one- to four-family residential mortgage loans. In particular, multi-family and commercial real estate lending typically involves higher loan amounts, and the repayment of such loans generally depends on income produced by the property being sufficient to cover operating expenses and debt service. Due to circumstances outside the borrower's control, income from the property as well as its market value can be adversely affected. Consumer loans involve higher degrees of credit risk due to their historically higher delinquency rates, the depreciating value of property securing certain of these loans and the unsecured nature of certain other types of consumer loans. RECAPITALIZATION OF THE SAIF; SAIF ASSESSMENTS; AND SPECIAL ASSESSMENT For the first three quarters of 1996, SAIF-insured institutions paid deposit insurance assessment rates of $0.23 to $0.31 per $100 of deposits. In contrast, institutions insured by the FDIC's Bank Insurance Fund (the "BIF") that were well capitalized and without any significant supervisory concerns paid the minimum annual assessment of $2,000, and all other BIF-insured institutions paid deposit insurance assessment rates of $0.03 to $0.27 per $100 of deposits. In response to the disparity between the SAIF and BIF assessments, the Deposit Insurance Funds Act of 1996 ("Funds Act") was enacted on September 30, 1996. The Funds Act amended the Federal Deposit Insurance Act (the "FDIA") in several ways to recapitalize the SAIF and reduce the disparity in the assessment rates for the BIF and the SAIF. The Funds Act authorized the FDIC to impose a special assessment on all institutions with SAIF-assessable deposits in the amount necessary to recapitalize the SAIF. As implemented by the FDIC, institutions with SAIFassessable deposits were assessed a special assessment, subject to adjustment, of 65.7 basis -5- points per $100 of the institution's SAIF-assessable deposits. The special assessment was payable on November 27, 1996. The Funds Act provides that the amount of the special assessment will be deductible for federal income tax purposes for the taxable year in which the special assessment is paid. Based on the foregoing, the Bank recorded an accrual for the special assessment of $1.6 million at September 30, 1996. The impact on operations, net of related tax effects, reduced reported earnings by $893,000 for the quarter ended September 30, 1996. As a result of the Funds Act, the SAIF was recapitalized in the last quarter of 1996, and the FDIC reduced the assessment rates for the SAIF. For the semi-annual period beginning January 1, 1997, the SAIF assessment rates range from 0 to 27 basis points, which is the same as the schedule of assessment rates for the BIF. The Funds Act also expanded the assessment base for the payments on the bonds ("FICO bonds") issued in the late 1980s by the Financing Corporation to recapitalize the now defunct Federal Savings and Loan Insurance Corporation to include the deposits of both BIF- and SAIF-insured institutions beginning January 1, 1997. Until December 31, 1999, or such earlier date on which the last savings association ceases to exist, the rate of assessment for the FICO payments imposed on BIF-assessable deposits will be one-fifth of the rate imposed on SAIF-assessable deposits. The annual rate of assessments for the payments on the FICO bonds for the semi-annual period beginning on January 1, 1997 will be 0.0130% for BIF-assessable deposits and 0.0648% for SAIF-assessable deposits. The Funds Act also provides for the merger of the BIF and SAIF on January 1, 1999, with such merger being conditioned upon the prior elimination of the thrift charter. The Secretary of the Treasury is required to conduct a study of relevant factors with respect to the development of a common charter for all insured depository institutions and abolition of separate charters for banks and thrifts and to report the Secretary's conclusions and findings to the Congress on or before March 31, 1997. Two bills have been introduced in Congress to eliminate the federal thrift charter, with one requiring the federal thrift to convert to a bank charter and the other giving the federal thrift the option to convert to a national or state chartered bank or to a state savings and loan association, but no determination has been made as to the enactment of either bill. FINANCIAL INSTITUTION REGULATION AND POSSIBLE LEGISLATION. The Bank is subject to extensive regulation, examination, and supervision by the OTS, as its chartering agency, and the FDIC, as its deposit insurer. The Bank's deposit accounts are insured up to applicable limits by the SAIF administered by the FDIC, and it is a member of the FHLB of New York. The Bank must file reports with the OTS and the FDIC concerning its activities and financial condition, and it must obtain regulatory approvals prior to entering into certain transactions, such as mergers with, or acquisitions of, other depository institutions. The OTS and the FDIC conduct periodic examinations to assess the Bank's compliance with various regulatory requirements. This regulation and supervision establishes a comprehensive framework of activities in which a savings association can engage and is intended primarily for the protection of the insurance fund and depositors. The Company, as a savings association holding company, is also required to file certain reports with, and otherwise comply with, the rules and regulations of the OTS and of the Securities and Exchange Commission (the "SEC") under the federal securities laws. -6- The OTS and the FDIC have significant discretion in connection with their supervisory and enforcement activities and examination policies, including policies with respect to the classification of assets and the establishment of adequate loan loss reserves for regulatory purposes. Any change in such policies, whether by the OTS, the FDIC, or the Congress, could have a material adverse impact on the Company, the Bank, and the operations of both. Congress currently has under consideration various proposals to consolidate the regulatory functions of the four federal banking agencies: the OTS, the FDIC, the Office of the Comptroller of the Currency and the Board of Governors of the Federal Reserve System. The outcome of efforts to effect regulatory consolidation is uncertain. Therefore, the Company is unable to determine the extent to which legislation, if enacted, would affect its business. CERTAIN ANTI-TAKEOVER PROVISIONS. PROVISIONS IN THE COMPANY'S AND THE BANK'S GOVERNING INSTRUMENTS. Certain provisions of the Company's Certificate of Incorporation and Bylaws, particularly a provision limiting voting rights, and the Bank's Federal Stock Charter and Bylaws, as well as certain federal and state regulations, assist the Company in maintaining its status as an independent publicly owned corporation. These provisions provide for, among other things, supermajority voting, staggered boards of directors, noncumulative voting for directors, limits on the calling of special meetings of stockholders, limits on the ability to vote Common Stock beneficially owned in excess of 10% of outstanding shares, and certain uniform price provisions for certain business combinations. The voting limitation is applicable to persons, together with affiliates of and persons acting in concert with such persons, who hold revocable proxies if the shares of Common Stock represented by the revocable proxies are deemed beneficially owned by such persons and exceed the limit. These provisions in the Bank's and the Company's governing instruments may discourage potential proxy contests and other potential takeover attempts, particularly those which have not been negotiated with the Board of Directors, and thus, generally may serve to perpetuate current management. In general, Section 203 of the Delaware General Corporation Law ("DGCL") prevents an "interested stockholder" (defined generally as a person with 15% or more of a corporation's outstanding voting stock) from engaging in a "business combination" (as defined in the DGCL) with a Delaware corporation for three years following the date such person became an interested stockholder. The provision is not applicable when (i) prior to the date the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, (ii) upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation, not including shares owned by directors who are also officers and by certain employee stock plans or (iii) on or subsequent to the date the stockholder becomes an interested stockholder, the business combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders, and not by written consent, by the -7- affirmative vote of the holders of at least two-thirds of the outstanding voting stock entitled to vote thereon, excluding shares owned by the interested stockholder. The DGCL's restrictions generally do not apply to business combinations with an interested stockholder that are proposed subsequent to the public announcement of, and prior to the consummation or abandonment of, certain mergers, sales of a majority of the corporation's assets or tender offers for 50% or more of the corporation's voting stock. The DGCL allows corporations to elect not to be subject to the provisions of the DGCL. The Company has not so elected. In addition to the provisions in the Company's and the Bank's organizational documents, certain provisions of the DGCL and the federal banking laws may be imposed upon acquirors of the Company's Common Stock, including restrictions that would require regulatory approval prior to any such acquisition. PROVISIONS OF REMUNERATION PLANS AND AGREEMENTS. Employment agreements with certain management officials, the Bank's severance policy and certain provisions of the Company's stock option plans and recognition and retention plans provide for benefits and cash payments in the event of a change in control of the Company or the Bank. The Company's Employee Stock Ownership Plan, stock option plans and recognition and retention plans also provide for accelerated vesting in the event of a change in control. These provisions may have the effect of increasing the cost of acquiring the Company, thereby discouraging future attempts to take over the Company or the Bank. STOCK OWNERSHIP BY DIRECTORS AND EXECUTIVE OFFICERS. Directors and executive officers of the Bank and the Company currently hold or control the voting of approximately 7% of the shares of Common Stock outstanding either through direct ownership or through participation in employee benefit plans maintained by the Company or the Bank that hold the Company's Common Stock. Management's potential voting control could, together with additional stockholder support, defeat stockholder proposals requiring an 80% supermajority vote. As a result, these provisions may preclude takeover attempts that certain stockholders may deem to be in their best interest and may tend to perpetuate existing management. USE OF PROCEEDS The shares will be offered by certain employees or former employees of the Company and the Bank who are present or former participants in the Plan, or their beneficiaries, for their personal accounts, and the proceeds from such sale will be used by them for their personal benefit. The Company will not receive any portion of the payment for the shares. DETERMINATION OF OFFERING PRICE The purchase price of the shares offered hereby will be the market price (plus customary or negotiated brokerage commissions) prevailing at the time of the sale in the case -8- of transactions on the Nasdaq National Market System and negotiated prices related to market prices in private negotiated transactions not on any securities exchange. SELLING SECURITY HOLDERS The persons selling shares of the Company's Common Stock offered hereby will be participants or former participants in the Carver Bancorp, Inc. Management Recognition Plan. Participants in the Plan include the following persons, who are affiliates of the Company, as that term has been defined by the Commission:
======================================================================================================== NUMBER OF NUMBER OF PERCENTAGE NUMBER OF SHARES SHARES TO OF CLASS TO POSITION AT COMPANY SHARES COVERED BY BE HELD BE OWNED SELLING OR AFFILIATES WITHIN BENEFICIALLY THIS AFTER AFTER SHAREHOLDER THE PAST THREE YEARS OWNED(1)(2) PROSPECTUS(2) OFFERING(3) OFFERING(4) ======================================================================================================== Thomas L. Clark, Jr. President and Chief 54,557 17,357 37,200 2.4% Executive Officer - -------------------------------------------------------------------------------------------------------- Biswarup Mukherjee Executive Vice 27,825 10,415 17,410 1.2% President and Chief Financial Officer - -------------------------------------------------------------------------------------------------------- Raymond L. Bruce Senior Vice President 11,279 3,471 7,808 * and Corporate Counsel - -------------------------------------------------------------------------------------------------------- David R. Jones Chairman of the Board, 12,914 3,471 9,443 * Director - -------------------------------------------------------------------------------------------------------- M. Moran Weston, Vice Chairman of the 17,122 5,207 11,915 * Ph.D. Board, Director - -------------------------------------------------------------------------------------------------------- David N. Dinkins Director 4,700 1,000 3,700 * - -------------------------------------------------------------------------------------------------------- Linda H. Dunham Director 3,500 1,000 2,500 * - -------------------------------------------------------------------------------------------------------- Richard T. Greene Director 19,122 5,207 13,915 * - -------------------------------------------------------------------------------------------------------- Herman Johnson Director 10,714 3,471 7,243 * ========================================================================================================
(1) Beneficial ownership in this table includes (a) the number of shares of the Company's Common Stock which such person has the right to acquire by the exercise of stock options, whether or not the stock options are vested as of March 17, 1997, (b) the number of shares held in such person's name in trust or otherwise under all of the Company's employee benefit plans and (c) the number of shares as to which such person shares voting and investment power. (2) Represents shares granted as of March 17, 1996, which is the most recent date as of which such information is available. (3) Assumes that all shares presently owned and hereafter acquired under the Plan are sold. (4) Percentage with respect to each person has been calculated on the basis of 2,314,275 shares of the Company's Common Stock outstanding as of February 12, 1997 as reported to the Commission on Form 10Q. (*) denotes less than 1% of outstanding Common Stock. PLAN OF DISTRIBUTION The shares may be offered for sale on the Nasdaq National Market System where they are quoted. They may be offered from time to time in private transactions. The Company does not expect to bear the expense of such sales. -9- LEGAL OPINIONS The legal status of the shares of the Company's Common Stock offered hereby will be passed upon for the Company by Thacher Proffitt & Wood, New York, New York. EXPERTS Not Applicable. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's authority to indemnify its officers and directors is governed by the provisions of Section 145, as amended, of the Delaware General Corporation Law ("DGCL") and by the Certificate of Incorporation of the Registrant. Article Tenth of the Certificate of Incorporation of the Registrant provides that any person who is made a party or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he or she is or was a director or officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, will be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL. Such indemnification shall apply whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent. Such indemnification shall be against all expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered in connection with the proceeding. This right to indemnification includes, to the extent permitted by the DGCL, the right to be paid by the Registrant the expenses incurred in defending any such proceeding in advance of its final determination. If a claim for indemnification is not paid in full by the Registrant within sixty days after a written claim has been received by the Registrant, the indemnitee may at any time thereafter bring suit against the Registrant to recover the unpaid amount of the claim. If successful in whole or in part in any such suit (or in a suit brought by the Registrant to recover an advancement of expenses), the indemnitee shall be entitled to be paid also the expenses of prosecuting (or defending) such suit. In any such suit, it shall be a defense to the Registrant that the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. The burden of proof in any such suit shall be on the Registrant to prove that the indemnitee is not entitled to be indemnified. The right of indemnification conferred in Article Tenth of the Certificate of Incorporation shall not be exclusive of any right which any person may have or hereafter acquire under any statute, the Registrant's Bylaws, agreement, vote of stockholders, disinterested directors, or otherwise. The Registrant maintains directors' and officers' liability insurance -10- coverage for all directors and officers of the Company and its subsidiaries through First Monetary Mutual Limited for a one-year policy term ending January 2, 1998. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore unenforceable. -11- No person has been authorized to give any information or to make any representation not contained in this Prospectus in connection with the offer made by this Prospectus, and, if given or made, such information or representation must not be relied upon as having been authorized by the Company Neither the delivery of this Prospectus nor any sale made hereunder shall under any circumstances create an implication that there has been no change in the affairs of the Company since the date hereof or that the information contained in this Prospectus is correct as of any date subsequent to the date of this Prospectus. This Prospectus does not constitute an offer or a solicitation of an offer to buy any of the securities offered hereby in any jurisdiction to any person to whom it is unlawful to make such offer in such jurisdiction. TABLE OF CONTENTS AVAILABLE INFORMATION...................................... 2 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................... 2 RISK FACTORS............................................... 3 USE OF PROCEEDS............................................ 10 DETERMINATION OF OFFERING PRICE............................................. 10 SELLING SECURITY HOLDERS................................... 10 PLAN OF DISTRIBUTION ...................................... 11 LEGAL OPINIONS............................................. 11 EXPERTS.................................................... 11 INDEMNIFICATION OF DIRECTORS AND OFFICERS..................................... 12 CARVER BANCORP, INC. 69,431 SHARES COMMON STOCK ($0.01 PAR VALUE) Offered or to be Offered by Certain Selling Shareholders of Carver Bancorp, Inc. Following Their Acquisition under the Carver Bancorp Inc. Management Recognition Plan PROSPECTUS DATED: March 21, 1997 -12- -----END PRIVACY-ENHANCED MESSAGE-----