As filed with the Securities and Exchange Commission on August 7, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
TOMPKINS COUNTY TRUSTCO, INC.
(Exact name of Company as Specified in its Charter)
NEW YORK
(State or other Jurisdiction of Incorporation or Organization)
161482357-8
(IRS Employer Identification No.)
The Commons, P.O. Box 460
Ithaca, New York 14851
(Address of principal executive offices)
1998 STOCK OPTION PLAN
(Full Title of Plan)
Richard D. Farr
Senior Vice President and
Chief Financial Officer
Tompkins County Trustco, Inc.
The Commons, P.O. Box 460
Ithaca, New York 14851
(607) 273-3210
(Name, address, including zip code, and telephone number,
including area code, of Agent for Service)
with a copy to:
Edward C. Hooks, Esq.
Harris Beach & Wilcox, LLP
119 East Seneca Street
Ithaca, New York 14850
(607) 273-6444
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee(2)
- --------------------------------------------------------------------------------
Common
Stock 240,000 $39.75 $9,540,000 $2,815
================================================================================
(1) The Registration Statement also includes an indeterminate number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options to purchase Common Stock, or pursuant to
the antidilution provisions of the Plan.
(2) In accordance with Rule 457 (c), calculated on the basis of the average
of the high and low sales prices of the Common Stock reported on the
American Stock Exchange, Inc. on August 3, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
(a) The Annual Report on Form 10-K of Tompkins County Trustco, Inc. (the
"Company") for the fiscal year ended December 31, 1997 as filed with
the Commission on March 27, 1998 pursuant to Sections 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) All other reports filed by the Company with the Commission pursuant to
Section 13(a) or Section 15(d) of the Exchange Act since the end of the
fiscal year covered by the Company's Form 10-K referred to above; and
(c) The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form 8-A (No. 1-12709) filed with
the Commission on January 30, 1997 pursuant to Section 12 of the
Exchange Act.
All documents subsequently filed by the Company pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed incorporated herein by
reference from the date of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
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statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 722 of the New York Business Corporation Law (the "BCL") empowers a
New York corporation to indemnify any persons who are, or are threatened to be,
parties to any action or proceeding (other than one by or in the right of the
corporation to procure a judgment in its favor), whether civil or criminal, by
reason of the fact that such person (or such person's testator or intestate),
was an officer or director of such corporation, or served at the request of such
corporation as a director, officer, employee, agent, or in any other capacity,
of another corporation or enterprise. The indemnity may include judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys'
fees actually and necessarily incurred by such person as a result of such action
or proceeding, or any appeal therein, provided that such officer or director
acted in good faith, for a purpose that he or she reasonably believed to be in
or, in the case of service for another corporation, not opposed to, the best
interests of the corporation and, for criminal actions or proceedings, in
addition, had no reasonable cause to believe his or her conduct was unlawful. A
New York corporation may indemnify officers and directors against amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him or her in connection with the defense or settlement
of an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such person shall have
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been adjudged to be liable to the corporation, unless and only to the extent
judicially approved. Where an officer or director is successful on the merits or
otherwise in the defense of an action referred to above, the corporation must
indemnify him or her against the expenses which such officer or director
actually and reasonably incurred.
In accordance with Section 402(b) of the BCL, the Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors of the Company to the fullest extent permitted under
the BCL; provided, however, that there shall be no limitation of a director's
liability for acts or omissions committed in bad faith, or that involved
intentional misconduct or a knowing violation of law, or from which a director
personally gained a financial profit or other advantage to which he or she was
not legally entitled. The effect of this provision is to eliminate the personal
liability of directors to the Company and its shareholders for monetary damages
for actions involving a breach of their fiduciary duty of care, including any
such actions involving gross negligence.
Article VIII of the of By-Laws of the Company provides for indemnification
for the officers and directors of the Company to the full extent permitted by
applicable law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration Statement:
4.1 Form of Specimen Common Stock Certificate of the Company,
incorporated herein by reference to Exhibit 4 of the
Company's Registration Statement on Form 8-A (No. 0-27514)
filed with the Commission on December 29, 1995 and amended by
the Company's Form 8-A/A filed with the Commission on January
22, 1996
4.2 1998 Stock Option Plan
5. Opinion of Harris Beach & Wilcox, LLP
23.1. Consent of KPMG Peat Marwick LLP
23.2. Consent of Harris Beach & Wilcox, LLP (contained in the
opinion filed as Exhibit 5 to this Registration Statement)
24. Powers of Attorney (included in Part II of this Registration
Statement under the caption "Signatures")
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ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERINGS.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent-post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in the volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
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<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) FILING OF REGISTRATION STATEMENT ON FORMS S-8.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions of the registrant's charter, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being offered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ithaca, State of New York on July 31, 1998.
By: /s/ JAMES J. BYRNES
-----------------------------------
James J. Byrnes
Chairman of the Board, President
and Chief Executive Officer
Each person whose signature appears below constitutes and appoints James J.
Byrnes, Donald S. Stewart and Richard D. Farr, and each of them singly, his true
and lawful attorney-in- fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 to be filed by Tompkins County
Trustco, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ JAMES J. BYRNES Chairman of the Board, July 31, 1998
- ----------------------- President and Chief Executive
James J. Byrnes Officer
/s/ RICHARD D. FARR Senior Vice President and July 31, 1998
- ----------------------- Chief Financial Officer
Richard D. Farr
- ----------------------- Director July __, 1998
John E. Alexander
/s/ REEDER D. GATES Director July 31, 1998
- -----------------------
Reeder D. Gates
- ----------------------- Director July __, 1998
William W. Griswold
/s/ CARL E. HAYNES Director July 31, 1998
- -----------------------
Carl E. Haynes
</TABLE>
7
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<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
- ----------------------- Director July __, 1998
Edward C. Hooks
/s/ ROBERT T. HORN, JR. Director July 31, 1998
- -----------------------
Robert T. Horn, Jr.
/s/ BONNIE H. HOWELL Director July 31, 1998
- -----------------------
Bonnie H. Howell
/s/ LUCINDA A. NOBLE Director July 31, 1998
- -----------------------
Lucinda A. Noble
- ----------------------- Director July __, 1998
Hunter R. Rawlings, III
/s/ FRANK H.T. RHODES Director July 31, 1998
- -----------------------
Frank H.T. Rhodes
/s/ THOMAS R. SALM Director July 31, 1998
- -----------------------
Thomas R. Salm
/s/ MICHAEL D. SHAY Director July 31, 1998
- -----------------------
Michael D. Shay
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Title Of Exhibit Page
- ------- ---------------- ----
4.1 Form of Specimen Common Stock Certificate of the
Company, incorporated herein by reference to
Exhibit 4 of the Company's Registration Statement
on Form 8-A (No. 0-27514) filed with the Commission
on December 29, 1995 and amended by the Company's
Form 8-A/A filed with the Commission on January 22,
1996
4.2 1998 Stock Option Plan
5. Opinion of Harris Beach & Wilcox, LLP
23.1. Consent of KPMG Peat Marwick LLP
23.2. Consent of Harris Beach & Wilcox, LLP (contained in
the opinion filed as Exhibit 5 to this Registration
Statement)
24. Powers of Attorney (included in Part II of this
Registration Statement under the caption
"Signatures")
9
EXHIBIT 4.2
TOMPKINS COUNTY TRUSTCO, INC.
1998 STOCK OPTION PLAN
SECTION 1. GENERAL
1.1 PURPOSE. The Tompkins County Trustco, Inc. 1998 Stock Option Plan
(the "Plan") has been established by Tompkins County Trustco, Inc. (the
"Company") to (a) attract and retain persons eligible to participate in the
Plan; (b) motivate Participants (as defined in Section 1.2) by means of
appropriate incentives to achieve long-range goals; (c) provide incentive
compensation opportunities that are competitive with those of other similar
companies; and (d) further identify Participants' interests with those of the
Company's other shareholders through compensation that is based on the Company's
common stock par value $.10 (the "Stock"); and thereby promote the long-term
financial interest of the Company and the Related Companies (as defined in
Section 6), including the growth in value of the Company's equity and
enhancement of long-term shareholder return.
1.2 PARTICIPATION. Subject to the terms and conditions of the Plan, the
Committee (as defined in Section 4.1) shall determine and designate, from time
to time, from among the Eligible Individuals (as defined in Section 6), those
persons who will be granted one or more Awards (as defined in Section 6) under
the Plan, and thereby become "Participants" in the Plan. In the discretion of
the Committee, a Participant may be granted any Award permitted under the
provisions of the Plan, and more than one Award may be granted to a Participant.
Awards may be granted as alternatives to or replacement of awards outstanding
under the Plan, or any other plan or arrangement of the Company or a Related
Company (including a plan or arrangement of a business or entity, all or a
portion of which is acquired by the Company or a Related Company).
1.3 OPERATION, ADMINISTRATION AND DEFINITIONS. The operation and
administration of the Plan, including the Awards made under the Plan, shall be
subject to the provisions of Sections 3 and 4. Capitalized terms in the Plan
shall be defined as set forth in the Plan, including the definition provisions
of Section 6 of the Plan.
SECTION 2. OPTIONS
2.1 DEFINITIONS. The grant of an "Option" entitles the Participant to
purchase shares of Stock at an Exercise Price (as defined in Section 2.2)
established by the Committee. Options granted under this Section 2 may be either
incentive stock options or non-qualified stock options, as determined in the
discretion of the Committee. An "Incentive Stock Option" is an Option that is
intended to satisfy the requirements applicable to an "incentive stock option"
described in Section 422(b) of the Code (as defined in Section 6). A
"Non-Qualified Option" is an Option that is not intended to be an "incentive
stock option" as that term is described in Section 422(b) of the Code.
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2.2 EXERCISE PRICE. The "Exercise Price" of each Option granted under
this Section 2 shall be established by the Committee or shall be determined by a
method established by the Committee at the time the Option is granted; except
that the Exercise Price for Incentive Stock Options shall not be less than 100%
of the Fair Market Value of a share of Stock as of the Pricing Date. For
purposes of the preceding sentence, the "Pricing Date" shall be the date on
which the Option is granted, except that the Committee may provide that: (i) the
Pricing Date is the date on which the recipient is hired or promoted (or similar
event), if the grant of the Option occurs not more than 90 days after the date
of such hiring, promotion or other event; and (ii) if an Option is granted in
tandem with, or in substitution for, an outstanding Award, the Pricing Date is
the date of grant of such outstanding Award.
2.3 EXERCISE. An Option shall be exercisable in accordance with such
terms and conditions and during such periods as may be established by the
Committee.
2.4 PAYMENT OF OPTION EXERCISE PRICE. The payment of the Exercise Price
of an Option granted under this Section 2 shall be subject to the following:
(a) Subject to the following provisions
of this subsection 2.4, the full
Exercise Price for shares of Stock
purchased upon the exercise of any
Option shall be paid at the time of
such exercise (except that, in the
case of an exercise arrangement
approved by the Committee and
described in subsection 2.4(c),
payment may be made as soon as
practicable after the exercise).
(b) The Exercise Price shall be payable
in cash or by tendering shares of
Stock (by either actual delivery of
shares or by attestation, with such
shares valued at Fair Market Value
as of the day of exercise), or in
any combination thereof, as
determined by the Committee.
(c) The Committee may permit a
Participant to elect to pay the
Exercise Price upon the exercise of
an Option by authorizing a third
party to sell shares of Stock (or a
sufficient portion of the shares)
acquired upon exercise of the Option
and remit to the Company a
sufficient portion of the sale
proceeds to pay the entire Exercise
Price and any tax withholding
resulting from such exercise.
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2.5 SETTLEMENT OF AWARD. Distribution following exercise of an Option,
and shares of Stock distributed pursuant to such exercise, shall be subject to
such conditions, restrictions and contingencies as the Committee may establish.
The Committee, in its discretion, may impose such conditions, restrictions and
contingencies with respect to shares of Stock acquired pursuant to the exercise
of an Option as the Committee determines to be desirable.
2.6 EXCEEDING LIMITATIONS. To the extent that the aggregate Fair Market
Value of Stock (determined at the time the Option is granted) with respect to
which Incentive Stock Options are exercisable for the first time by a
Participant during any calendar year (under all plans of the Company and all
Related Companies) exceeds $100,000, such Options shall be treated as
Non-Qualified Options, to the extent required by Section 422 of the Code.
SECTION 3. OPERATION
3.1 EFFECTIVE DATE. Subject to the approval of the shareholders of the
Company at the Company's 1998 annual meeting of its shareholders, the Plan shall
be effective as of May 1, 1998 (the "Effective Date"); PROVIDED, HOWEVER, that
to the extent that Awards are made under the Plan prior to its approval by
shareholders, they shall be contingent on approval of the Plan by the
shareholders of the Company. The Plan shall be unlimited in duration and, in the
event of Plan termination, shall remain in effect as long as any Awards under it
are outstanding; PROVIDED, HOWEVER, that, to the extent required by the Code, no
Incentive Stock Options may be granted under the Plan on a date that is more
than ten years from the date the Plan is adopted or, if earlier, the date the
Plan is approved by shareholders.
3.2 SHARES SUBJECT TO PLAN.
(a) (i) Subject to the following provisions of this subsection 3.2,
the maximum number shares of Stock that may be delivered to Participants and
their beneficiaries under the Plan shall be equal to the sum of: (x) 240,000
shares of Stock and (y) shares of Stock, to the extent authorized by the Board
(as defined in Section 6), which are reacquired in the open market or in a
private transaction after the Effective Date.
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(ii) Any shares of Stock granted under the Plan that are forfeited
back to the Company because of the failure to meet an Award contingency or
condition shall again be available for delivery pursuant to new Awards granted
under the Plan. To the extent any shares of Stock covered by an Award are not
delivered to a Participant or beneficiary because the Award is forfeited or
canceled, such shares shall not be deemed to have been delivered for purposes of
determining the maximum number of shares of Stock available for delivery under
the Plan.
(iii) If the Exercise Price of any Option granted under the Plan is
satisfied by tendering shares of Stock to the Company (by either actual delivery
or by attestation), only the number of shares of Stock issued net of the shares
of Stock tendered shall be deemed delivered for purposes of determining the
maximum number of shares of Stock available for delivery under the Plan.
(iv) Shares of Stock delivered under the Plan in settlement,
assumption or substitution of outstanding awards (or obligations to grant future
awards) under the plans or arrangements of another entity shall not reduce the
maximum number of shares of Stock available for delivery under the Plan, to the
extent that such settlement, assumption or substitution is a result of the
Company or a Related Company acquiring another entity (or an interest in another
entity).
(b) Subject to subsection 3.2(c), the following additional maximums are
imposed under the Plan:
(i) The maximum number of shares of Stock that may be issued by
Options intended to be Incentive Stock Options shall be 240,000 plus, if
permitted under the Code, the number of shares of Stock reacquired in the open
market or in a private transaction after the Effective Date specifically
authorized by the Board to be delivered under the Plan in accordance with
Section 3.2 hereof.
(ii) The maximum number of shares that may be covered by Awards
granted to any one individual pursuant to Section 2 shall be 25,000 shares
during any calendar year.
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(c) Subject to Section 3.13 below relating to changes of control, in
the event of a corporate transaction involving the Company (including, without
limitation, any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination or exchange of shares), (i) the Committee may make appropriate
adjustments to the maximum number of shares that may be delivered under the
Plan, including without limitation, the numbers specified in Sections 3.2(a)(i),
3.2(b)(i) and 3.2(b)(ii), and (ii) the Committee may adjust Awards to preserve
the benefits or potential benefits of the Awards. Action by the Committee may
include adjustment of: (a) the number and kind of shares which may be delivered
under the Plan; (b) the number and kind of shares subject to outstanding Awards;
and (c) any other adjustments that the Committee determines to be equitable.
3.3 LIMIT ON DISTRIBUTION. Distribution of shares of Stock or other
amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any shares of Stock under the Plan unless such
delivery or distribution would comply with all applicable laws (including,
without limitation, the requirements of the Securities Act of 1933) and the
applicable requirements of any securities exchange or similar entity.
(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of shares of Stock, the issuance may be
effected on a noncertificated basis, to the extent not prohibited by applicable
law or the applicable rules of any stock exchange.
3.4 TAX WITHHOLDING. The Company may require the recipient to remit to
the Company an amount sufficient to satisfy any Federal, state and local tax
withholding requirements prior to the delivery of any shares of Stock under the
Plan or, in the discretion of the Committee, the Company may withhold from the
shares to be delivered shares sufficient to satisfy all or a portion of such tax
withholding requirements.
3.5 PAYMENT SHARES. Subject to the overall limitation on the number of
shares of Stock that may be delivered under the Plan, the Committee may use
available shares of Stock as the form of payment for compensation, grants or
rights earned or due under any other compensation plans or arrangements of the
Company or a Related Company, including the plans and arrangements of the
Company or a Related Company acquiring another entity (or an interest in another
entity).
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3.6 DIVIDENDS AND DIVIDEND EQUIVALENTS. An Award may provide the
Participant with the right to receive dividends or dividend equivalent payments
with respect to Stock which may be either paid currently or credited to an
account for the Participant, and may be settled in cash or Stock as determined
by the Committee. Any such settlements, and any such crediting of dividends or
dividend equivalents or reinvestment in shares of Stock, may be subject to such
conditions, restrictions and contingencies as the Committee shall establish,
including the reinvestment of such credited amounts in Stock equivalents.
3.7 TRANSFERABILITY. Except as otherwise provided by the Committee,
Awards under the Plan are not transferable except as designated by the
Participant by will or by the laws of descent and distribution.
3.8 FORM AND TIME OF ELECTIONS. Unless otherwise specified herein,
each election required or permitted to be made by any Participant or other
person entitled to benefits under the Plan, and any permitted modification, or
revocation thereof, shall be in writing filed with the Committee at such times,
in such form, and subject to such restrictions and limitations, not inconsistent
with the terms of the Plan, as the Committee shall require.
3.9 AGREEMENT WITH COMPANY. At the time of an Award to a Participant
under the Plan, the Committee may require a Participant to enter into an
agreement with the Company (the "Agreement") in a form specified by the
Committee, agreeing to the terms and conditions of the Plan and to such
additional terms and conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, prescribe.
3.10 LIMITATION OF IMPLIED RIGHTS.
(a) Neither a Participant nor any other person shall, by reason of the
Plan, acquire any right in or title to any assets, funds or property of the
Company or any Related Company whatsoever, including, without limitation, any
specific funds, assets, or other property which the Company or any Related
Company, in their sole discretion, may set aside in anticipation of a liability
under the Plan. A Participant shall have only a contractual right to the stock
unsecured by any assets of the Company or any Related Company.
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(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any Eligible Individual the right to be
retained in the employ of the Company or any Related Company or as a service
provider to the Company or any Related Company, nor any right or claim to any
benefit under the Plan, unless such right or claim has specifically accrued
under the terms of the Plan. Except as otherwise provided in the Plan, no Award
under the Plan shall confer upon the holder thereof any right as a shareholder
of the Company prior to the date on which the individual fulfills all conditions
for receipt of such rights.
3.11 NO FRACTIONAL SHARES. No fractional shares of Stock shall be
issued or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash shall be paid or transferred in lieu of any fractional
shares of Stock, or whether such fractional shares of Stock or any rights
thereto shall be canceled.
3.12 EVIDENCE. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and signed, made or presented by the proper
party or parties.
3.13 CHANGE IN CONTROL. Subject to the provisions of subsection 3.2 (c)
(relating to the adjustment of shares), and except as otherwise provided in the
Plan or the agreement reflecting the applicable Award, upon the occurrence of a
Change in Control (as defined in Section 6) all outstanding Awards shall become
fully vested and exercisable.
3.14 ACTION BY COMPANY OR RELATED COMPANY. Any action required or
permitted to be taken by the Company or any Related Company shall be by
resolution of its board of directors, or by action of one or more members of the
board (including a committee of the board) who are duly authorized to act for
the board, or (except to the extent prohibited by applicable law or applicable
rules of any stock exchange) by a duly authorized officer of the company.
3.15 GENDER AND NUMBER. Where the context admits, words in any gender
shall include any other gender, words in the singular shall include the plural
and the plural shall include the singular.
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SECTION 4. COMMITTEE
4.1 ADMINISTRATION. The authority to control and manage the operation
and administration of the Plan shall be vested in a committee (the "Committee")
in accordance with this Section 4.
4.2 SELECTION OF COMMITTEE. The Committee shall be selected by the
Board, and shall consist of two or more members of the Board.
4.3 POWERS OF COMMITTEE. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(a) Subject to the provisions of the Plan, the Committee will have the
authority and discretion to select from among the Eligible Individuals those
persons who shall receive Awards, to determine the time or times of receipt, to
determine the types of Awards and the number of shares covered by the Awards, to
establish the terms, conditions, performance criteria, restrictions, and other
provisions of such Awards, and (subject to the restrictions imposed by Section
5) to cancel or suspend Awards. In making such Award determinations, the
Committee may take into account the nature of services rendered by the
individual, the individual's present and potential contribution to the Company's
success and such other factors as the Committee deems relevant.
(b) Subject to the provisions of the Plan, the Committee will have the
authority and discretion to determine the extent to which Awards under the Plan
will be structured to conform to the requirements applicable to
performance-based compensation as described in Code Section 162(m), and to take
such action, establish such procedures, and impose such restrictions at the time
such Awards are granted as the Committee determines to be necessary or
appropriate to conform to such requirements.
(c) The Committee will have the authority and discretion to establish
terms and conditions of Awards as the Committee determines to be necessary or
appropriate to conform to applicable requirements or practices of jurisdictions
outside of the United States.
(d) The Committee will have the authority and discretion to interpret
the Plan, to establish, amend, and rescind any rules and regulations relating to
the Plan, to determine the terms and provisions of any agreements made pursuant
to the Plan, and to make all other determinations that may be necessary or
advisable for the administration of the Plan.
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(e) Any interpretation of the Plan by the Committee and any decision
made by it under the Plan is final and binding.
(f) Except as otherwise expressly provided in the Plan, where the
Committee is authorized to make a determination with respect to any Award, such
determination shall be made at the time the Award is made, except that the
Committee may reserve the authority to have such determination made by the
Committee in the future (but only if such reservation is made at the time the
Award is granted and is expressly stated in the Agreement reflecting the Award).
(g) In controlling and managing the operation and administration of
the Plan, the Committee shall act by a majority of its then members, by meeting
or by a writing filed without a meeting. The Committee shall maintain and keep
adequate records concerning the Plan and concerning its proceedings and acts in
such form and detail as the Committee may decide.
4.4 DELEGATION BY COMMITTEE. Except to the extent prohibited by
applicable law or the applicable rules of a stock exchange, the Committee may
allocate all or any portion of its responsibilities and powers to any one or
more of its members and may delegate all or any part of its responsibilities and
powers to any person or persons selected by it. Any such allocation or
delegation may be revoked by the Committee at any time.
4.5 INFORMATION TO BE FURNISHED TO COMMITTEE. The Company and Related
Companies shall furnish the Committee with such data and information as may be
required for it to discharge its duties. The records of the Company and Related
Companies as to an Eligible Individual's employment or other provision of
services, termination of employment or cessation of the provision of services,
leave of absence, reemployment and compensation shall be conclusive on all
persons unless determined to be incorrect. Participants and other persons
entitled to benefits under the Plan must furnish the Committee such evidence,
data or information as the Committee considers desirable to carry out the terms
of the Plan.
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SECTION 5. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND
TERMINATION
5.1 EFFECT ON OTHER AWARDS OR BONUSES. Neither adoption of the Plan
nor the grant of Awards to a Participant will affect the Company's right to
grant to such Participant Awards that are not subject to the Plan, to issue to
such Participant Stock as a bonus or otherwise, or to adopt other plans or
arrangements under which Stock may be issued to Eligible Individuals or other
persons.
5.2 DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION. The Board
may at any time discontinue granting Awards under the Plan. The Board may at any
time or times alter or amend the Plan or any outstanding Award for any purpose
which may at the time be permitted by law, or may at any time terminate the Plan
as to any further grants of Awards, provided that (except to the extent
expressly required or permitted by the Plan) no such amendment will, without the
approval of (a) the Company's stockholders, to the extent stockholder approval
of the amendment is required by applicable law or regulations or the
requirements of the principal exchange or interdealer quotation system on which
the Stock is listed or quoted, (i) increase the maximum number of shares
available under the Plan, (ii) change the group of persons eligible to receive
Awards under the Plan, (iii) extend the time within which Awards may be granted,
or (iv) amend the provisions of this Section 5.2, and (b) each affected
Participant if the amendment, alteration or termination would adversely affect
the Participant's rights or obligations under any Award made prior to the date
of the amendment, alteration or termination. The termination of the Plan would
not affect the validity of any Award outstanding on the date of termination.
SECTION 6. DEFINED TERMS
For purposes of the Plan, the terms listed below shall be defined as
follows:
(a) AWARD. The term "Award" shall mean any award or benefit granted to
any Participant under the Plan, including, without limitation, the grant of
Options.
(b) BOARD. The term "Board" shall mean the Board of Directors of the
Company.
(c) CHANGE IN CONTROL. The term "Change in Control" means a change in
control of a nature that would be required to be reported in a proxy statement
with respect to the Company (even if the Company is not actually subject to said
reporting requirements) in response to Item 6(e) (or any comparable or successor
Item) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), except that any merger,
consolidation or corporate reorganization in which the owners of the Company's
capital stock entitled to vote in the election of directors (the "Voting Stock")
prior to said
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combination receive more than 50% of the resulting entity's Voting Stock shall
not be considered a change in control for the purposes of this Plan; and
provided that, without limitation of the foregoing, such change in control shall
be deemed to have occurred if (i) without the prior approval of the Company's
Board of Directors, any "person" (as that term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), excluding shares held by any shareholder as of
the Effective Date and all shares now or hereafter owned by any stock purchase
or employee stock ownership plan maintained by the Company or a Related Company,
is or becomes the "beneficial owner" (as that term is defined by the Securities
and Exchange Commission for purposes of Section 13(d) of the Exchange Act),
directly or indirectly, of more than 20% of the outstanding Voting Stock of the
Company or its successors, or (ii) during any period of two consecutive years a
majority of the Board of Directors no longer consists of individuals who were
members of the Board of Directors at the beginning of such period, unless the
election of each director who was not a director at the beginning of the period
was approved by a vote of at least 75% of the directors still in office who were
directors at the beginning of the period.
(d) CODE. The term "Code" means the Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include reference to any
successor provision of the Code.
(e) ELIGIBLE INDIVIDUAL. The term "ELIGIBLE INDIVIDUAL" shall mean any
employee of the Company or a Related Company and any consultant or other person
providing services to the Company or a Related Company.
(f) FAIR MARKET VALUE. For purposes of determining the "FAIR MARKET
VALUE" of a share of Stock, the following rules shall apply:
(i) If the Stock is at the time listed or admitted to trading on
any stock exchange, then the "Fair Market Value" shall be the closing price on
the date in question on the principal exchange on which the Stock is then listed
or admitted to trading. If no reported sale of Stock takes place on the date in
question on the principal exchange, then the average of the last reported bid
and asked price of the Stock on such date on the principal exchange shall be
determinative of "Fair Market Value."
(ii) If the Stock is not at the time listed or admitted to trading
on a stock exchange, the "Fair Market Value" shall be the average between the
lowest reported bid price and highest reported asked price of the Stock on the
date in question in the over-the-counter market, as such prices are reported in
a publication of general circulation selected by the Committee and regularly
reporting the market price of Stock in such market.
(iii)If the Stock is not listed or admitted to trading on any
stock exchange or traded in the over-the-counter market, the "Fair Market Value"
shall be as determined in good faith by the Committee.
(g) RELATED COMPANIES. The term "Related Company" means (i) any
company during any period in which it is a "parent-company" (as that term is
defined in Code Section 424(e)) with respect to the Company or a "subsidiary
corporation" (as that term is defined in Code Section 424(f)) with respect to
the Company, and (ii) any business venture in which the Company has a
significant interest, as determined in the discretion of the Committee.
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EXHIBIT 5
HARRIS
BEACH &
WILCOX
August 6, 1998 A LIMITED LIABILITY
PARTNERSHIP
ATTORNEYS AT LAW
119 EAST SENECA STREET
P.O. BOX 580
ITHACA, NEW YORK. 14850
(607) 273-6444
(607) 273-6802 (Fax)
- --------------------------------------------------------------------------------
Tompkins County Trustco, Inc.
The Commons, P.O. Box 460
Ithaca, New York 14851
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 240,000 shares of common stock,
$.10 par value per share (the "Shares"), of Tompkins County Trustco, Inc., a New
York corporation (the "Company"), issuable under the Company's 1998 Stock Option
Plan (the "Plan").
We have acted as counsel for the Company in connection with the Plan
and are familiar with the actions taken by the Company in connection therewith.
For purposes of this opinion we have examined the Registration Statement, the
Plan and such other documents as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly authorized and (ii) the Shares, when issued and sold in
accordance with the terms of the Plan, will have been validly issued and will be
fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HARRIS BEACH & WILCOX, LLP
By:
-----------------
Mark B. Wheeler
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Tompkins County Trustco, Inc.:
We consent to incorporation by reference in the Registration Statement for the
1998 Stock Option Plan on Form S-8 of Tompkins County Trustco, Inc. of our
report dated January 16, 1998, relating to the consolidated statements of
condition of Tompkins County Trustco, Inc. and subsidiary as of December 31,
1997 and 1996, and the related consolidated statements of income, changes in
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997, which report has been incorporated by reference
in the December 31, 1997 annual report on Form 10-K of Tompkins County Trustco,
Inc.
KPMG Peat Marwick, LLP
Syracuse, New York
August 3, 1998
