-----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, Q2wKJirEGF97Lqn6vmvA5eG0MajynoV+53NeV4OfIplEs8bcHN4fpJtID+Kd9Uum hGQHKrYYgFerddeqHFm6+A== 0000882377-04-000422.txt : 20040226 0000882377-04-000422.hdr.sgml : 20040226 20040225183434 ACCESSION NUMBER: 0000882377-04-000422 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20040226 EFFECTIVENESS DATE: 20040226 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: 333-113095 FILM NUMBER: 04628575 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 d207354.txt CARVER BANCORP, INC. As filed with the Securities and Exchange Commission on February 26, 2004 Registration No. ================================================================================ UNITED STATES 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 incorporation or organization) (I.R.S. Employer Identification No.)
75 West 125th Street New York, NY 10027 212-876-4747 (Address, including Zip Code, of principal executive offices) ------------------------------ CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN (Full title of the Plan) ------------------------------ Deborah C. Wright President and Chief Executive Officer Carver Bancorp, Inc. 75 West 125th Street New York, NY 10027 212-876-4747 COPY TO: Kofi Appenteng, Esq. Thacher Proffitt & Wood, LLP Two World Financial Center New York, NY 10281 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 Amount to be Registered (1) Proposed Maximum Proposed Maximum Amount of Registered Offering Price Per Aggregate Offering Registration Fee (2) Share Price - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value 50,000 $24.725 $1,236,250 $156.64 ==================================================================================================================================
(1) Based on the number of shares of common stock of Carver Bancorp, Inc. (the "Registrant") authorized for awards under the Carver Bancorp, Inc. Management Recognition Plan (the "Plan"). In addition to such shares, this registration statement also covers an undetermined number of shares of common stock of the Registrant that, by reason of certain events specified in the Plan, may become issuable upon grant of awards through the application of certain anti-dilution provisions. (2) Estimated solely for purpose of calculating the registration fee in accordance with Rule 457 of the Securities Act of 1933, pursuant to which 50,000 shares subject to outstanding options are deemed to be offered at $24.725 per share, the average of the daily high and low sales prices of common stock of the Company on the American Stock Exchange at the close of trading as of February 20, 2004. ================================================================================ 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") pursuant to the Note to Part I of Form S-8 (the "Prospectus"). ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be filed with the Commission pursuant to the Note to Part I of Form S-8. The document containing the information specified in this Part I will be sent or given to employees of the Registrant as specified by Rule 428(b)(1) of the Securities Exchange Act of 1934, as amended ("Exchange Act"). 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 of the Exchange Act. 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 documents incorporated herein by reference in Item 3 below (other than exhibits to such documents). Written requests should be directed to: Linda J. Dunn, Esq. Senior Vice President, General Counsel and Secretary Carver Bancorp, Inc. 75 West 125th Street New York, New York 10027-4512. Telephone requests may be directed to (212) 360-8826. The documents referred to above 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 which have been filed with the Commission by the Registrant, are incorporated by reference: (a) Annual Report on Form 10-K for the Registrant's fiscal year ended March 31, 2003; (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the Registrant's fiscal year ended March 31, 2003; and (c) Description of the Common Stock of the Registrant contained in the Registrant's Registration Statement on Form S-4 dated June 7, 1996, and any amendments or reports for purposes of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement, which indicates that all Common Stock offered hereby has been sold or which deregisters all Common Stock then remaining unsold, 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. 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 indemnification and liability of the Registrant's directors and officers are governed by the Delaware General Corporation Law, as amended ("GCL"), and by the Certificate of Incorporation of the Registrant. Section 145 of the GCL authorizes a corporation to indemnify its directors, officers, employees and agents against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement reasonably incurred, including liabilities under the Securities Act, provided they act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful, although in the case of proceedings brought by or on behalf of the corporation, such indemnification is limited to expenses and is not permitted if the individual is adjudged liable to the corporation (unless the Delaware Court of Chancery or the court in which such proceeding was brought determines otherwise in accordance with the GCL). Section 102 of the GCL authorizes a corporation to limit or eliminate its directors' liability to the corporation or its stockholders for monetary damages for breaches of fiduciary duties, other than for (i) breaches of the duty of loyalty, (ii) acts or omissions not in good faith or that involve intentional misconduct or knowing violations of law, (iii) unlawful payments of dividends, stock purchases or redemptions, or (iv) transactions from which a director derives an improper personal benefit. In addition, Section 145 of the GCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against any liability asserted against and incurred by such person in any such capacity, or arising out of such person's status as such. -2- 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 or has agreed to become a director or officer of the Registrant or by reason of any action alleged to have been taken or omitted in such capacity, or is or was serving or has agreed to serve as a director, officer, employee or agent of another corporation at the request of the Registrant, 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, excise taxes under the Employee Retirement Income Security Act of 1974, as amended, 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 but only upon receipt of a written undertaking by or on behalf of the indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that such director, officer, employee or agent is not entitled to indemnification. 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 and 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 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 has entered into an employment agreement with its President and Chief Executive Officer which requires the Registrant to indemnify such person against, and hold such person harmless from, any costs, liabilities, losses and exposures to the fullest extent and on the most favorable terms and conditions that similar indemnification is offered to any director or officer of the Registrant or any subsidiary or affiliate thereof. The Registrant maintains directors' and officers' liability insurance coverage for all directors and officers of the Registrant and its subsidiaries which insures against any breach of duty, neglect, error, negligent misrepresentation, omission or act by the directors or officers of the Registrant in their respective capacities as such, or any matter claimed against them solely by reason of their status as directors or officers of the Registrant. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has -3- been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. 4.1 Carver Bancorp, Inc. Management Recognition Plan (Amended and Restated as of September 23, 2003). 4.2 Forms of Plan Share Agreements under the Plan. 4.3 Certificate of Incorporation of Carver Bancorp, Inc., incorporated herein by reference to the Registrant's Registration Statement No. 333-5559 on Form S-4, filed with the Commission on June 7, 1996. 4.4 Amended and Restated By-Laws of Carver Bancorp, Inc., incorporated herein by reference to the Registrant's Annual Report on Form 10-K for the Registrant's fiscal year ended March 31, 2003, filed with the Commission on June 30, 2003. 5. Opinion of Thacher Proffitt & Wood, LLP counsel for the Registrant, as to legality. 23.1 Consent of Thacher Proffitt & Wood, LLP (included in Exhibit 5 hereof). 23.2 Consent of KPMG, LLP. 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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. -4- (2) That, for the purpose of determining liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (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 any 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. (e) 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 Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (h) 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. -5- 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 February 23, 2004. Carver Bancorp, Inc. (Registrant) By: /s/ Deborah C. Wright ------------------------------------- Deborah C. Wright President & Chief Executive Officer Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Name Title Date /s/ Deborah C. Wright President and Chief Executive Officer and February 23, 2004 - ----------------------------------- Director Deborah C. Wright (Principal Executive Officer) /s/ William Gray Senior Vice President and Chief Financial February 23, 2004 - ----------------------------------- Officer William Gray (Principal Financial and Accounting Officer) /s/ Frederick O. Terrell Director, Chairman of the Board February 23, 2004 - ----------------------------------- Frederick O. Terrell /s/ Carol Baldwin Moody Director February 23, 2004 - ----------------------------------- Carol Baldwin Moody /s/ Robert Holland, Jr. Director February 23, 2004 - ----------------------------------- Robert Holland, Jr. /s/ Edward B. Ruggiero Director February 23, 2004 - ----------------------------------- Edward B. Ruggiero /s/ Strauss Zelnick Director February 23, 2004 - ----------------------------------- Strauss Zelnick
EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------------------------------------------------------------------------------------------------------------------------ 4.1 Carver Bancorp, Inc. Management Recognition Plan (Amended and Restated as of September 23, 2003). 4.2 Forms of Plan Share Agreements under the Plan. 4.3 Certificate of Incorporation of Carver Bancorp, Inc., incorporated herein by reference to the Registrant's Registration Statement No. 333-5559 on Form S-4, filed with the Commission on June 7, 1996. 4.4 Amended and Restated By-Laws of Carver Bancorp, Inc., incorporated herein by reference to the Registrant's Annual Report on Form 10-K for the Registrant's fiscal year ended March 31, 2003, filed with the Commission on June 30, 2003. 5 Opinion of Thacher Proffitt & Wood, LLP, counsel for the Registrant, as to legality. 23.1 Consent of Thacher Proffitt & Wood, LLP (included in Exhibit 5 hereof). 23.2 Consent of KPMG, LLP.
EX-4.1 3 d210780.txt INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS EXHIBIT 4.1 CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN (AMENDED AND RESTATED AS OF SEPTEMBER 23, 2003) 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- EXHIBIT 4.1 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., and any successor thereto. 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. 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. -2- EXHIBIT 4.1 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. 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 reserve or override any action taken or -3- EXHIBIT 4.1 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. The aggregate number of shares of Common stock deliverable pursuant to Plan Share Awards shall not exceed 119,431 Shares. If any Plan Share Awards should be forfeited for any reason, the Plan Shares shall, unless the Plan shall have been terminated, be available for the grant of additional Plan Share Awards under the Plan. 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 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. -4- EXHIBIT 4.1 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 Awards 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 become vested and non-forfeitable according to subsections (a) and (b) of Section 7.01. 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 a Director's request made pursuant to Section 7.03(b). -5- EXHIBIT 4.1 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 awards 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 non-forfeitable according to subsections (a) and (b) of Section 7.01. 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 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. -6- EXHIBIT 4.1 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. Notwithstanding the foregoing, in its discretion, the Committee or, in the alternative, the Board may determine the Plan Shares subject to a Plan Share Award to an Employee or Director shall be earned and become non-forfeitable with respect to a different percentage or percentages of Plan Shares awarded and at a different time or times than prescribed under the general rule set forth in this Section 7.01(a). (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. 7.03 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. -7- EXHIBIT 4.1 (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. 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, -8- EXHIBIT 4.1 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 or 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 the 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 (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 -9- EXHIBIT 4.1 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 became 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. 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. -10- EX-4.2 4 d210908.txt INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS EXHIBIT 4.2 CARVER BANCORP, INC. MANAGEMENT RECOGNITION PLAN PLAN SHARE AGREEMENT - - - ---------------------------------------------- ----- --------- -------- 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) ================================================================================ Grant Date: - -------------------------------------------------------------------------------- Class of shares awarded* 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: NAME: 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 -------------------- 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 that are purchased prior to their distribution to you will be held in trust by 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; AND, PROVIDED FURTHER, that the Plan Shares shall become vested and available for distribution on the effective date of any Change in Control or Pending Change in Control. 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: Compensation Committee of Carver Bancorp, Inc. (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. -2- 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. -3- 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 of Carver Federal Savings Bank. The effective date of the designations made herein will be the date this Beneficiary Designation is received by the Human Resources Department of Carver Federal Savings Bank. 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.
Name and Address Social Security Number Relationship Date of Percentage 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:
Name and Address Social Security Number Relationship Date of Percentage 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 of Carver Federal Savings Bank 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: -------------------------------------------------- * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * SENIOR HUMAN RESOURCES OFFICER OF CARVER FEDERAL SAVINGS BANK (ON BEHALF OF THE COMMITTEE) Received [CHECK ONE]: / / By Hand / / By Mail By Date of Receipt: ------------------------------------------- ---------- Authorized Signature -1- EX-5.1, 23.1 5 dcarver-ex5.txt OPINION RE: LEGALITY [LETTERHEAD OF THACHER PROFFITT & WOOD LLP] February 23, 2004 Carver Bancorp, Inc. 75 West 125th Street New York, NY 10027 Re: Carver Bancorp, Inc. Management Recognition Plan ------------------------------------------------ Ladies and Gentlemen: 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 50,000 shares of the Corporation's common stock, par value $.01 per share ("Shares"). We have been advised that the Shares either were or will be purchased by the Corporation in open market purchases pursuant to the Corporation's repurchase program in part to fund stock grants pursuant to the Carver Bancorp, Inc. Management Recognition Plan (Amended and Restated as of September 23, 2003) ("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, and we have examined such matters of law, as we have deemed necessary or appropriate as a basis for the opinion set forth herein. 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 and we did not independently establish or verify the facts, information, covenants and representations set forth in the foregoing documents. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons and the conformity to the originals of all documents submitted to us as copies. Carver Bancorp, Inc. February 23, 2004 Page 2. 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 that, 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 other than the federal securities laws of the United States. 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 our 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, /s/ THACHER PROFFITT & WOOD LLP EX-23.2 6 d209958.txt CONSENTS OF EXPERTS AND COUNSEL EXHIBIT 23.2 LETTERHEAD OF KPMG LLP CONSENT OF INDEPENDENT AUDITORS 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 June 24, 2003, relating to the consolidated statements of financial condition of Carver Bancorp, Inc. and subsidiaries as of March 31, 2003 and 2002, and the related consolidated statements of operations, changes in stockholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended March 31, 2003, which report appears in the March 31, 2003 Annual Report on Form 10-K of Carver Bancorp, Inc. KPMG LLP /s/ KPMG LLP New York, New York February 13, 2004 -----END PRIVACY-ENHANCED MESSAGE-----