<PAGE> 1
As filed with the Securities and Exchange Commission on February 17, 1999
-----------
Registration No. 333-
-----------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ROSLYN BANCORP, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 11-3333218
(state or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1400 Old Northern Boulevard
Roslyn, New York 11576
(516) 621-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
T R FINANCIAL CORP.
1993 INCENTIVE STOCK OPTION PLAN 1
and
T R FINANCIAL CORP.
1993 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS 1
(Full Title of the Plans)
----------------------------------
Joseph L. Mancino Copies to:
President and Chief Executive Officer Lawrence M.F. Spaccasi, Esquire
Roslyn Bancorp, Inc. Marc P. Levy, Esquire
1400 Old Northern Boulevard Muldoon, Murphy & Faucette LLP
Roslyn, New York 11576 5101 Wisconsin Avenue, N.W.
(516) 621-6000 Washington, D.C. 20016
(Name, address, including zip code, and (2020 362-0840
telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / X /
----
<TABLE>
<CAPTION>
=========================================================================================================================
Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered(2) Price Per Share Offering Price Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,940,488
$.01 Par Value Shares (3) $5.243(4) $15,416,978 $4,286
- -------------------------------------------------------------------------------------------------------------------------
Common Stock 643,608 $3.667(6) $2,360,110.50 $657
$.01 Par Value Shares (5)
=========================================================================================================================
(1) Roslyn Bancorp, Inc. (the "Registrant" or "Roslyn") is offering shares of its common stock pursuant to these plans
because in the merger of T R Financial Corp. into Roslyn, Roslyn succeeded to T R Financial Corp.'s obligations
under these plans.
(2) Together with an indeterminate number of additional shares which may be necessary to adjust the number of shares
reserved for issuance pursuant to the T R Financial Corp. 1993 Incentive Stock Option Plan (the "Incentive Plan")
and the T R Financial Corp. 1993 Stock Option Plan for Outside Directors (the "Directors' Option Plan") as the
result of a stock split, stock dividend or similar adjustment of the outstanding common stock of Roslyn pursuant
to 17 C.F.R. ss.230.416(a).
(3) This number represents the total number of shares of Roslyn currently reserved or available for issuance upon
the exercise of stock options pursuant to the Incentive Plan, as adjusted to reflect the exchange ratio of 2.05
shares of Roslyn common stock for each share of T R Financial common stock. This is pursuant to 17 C.F.R. ss.457.
(4) Represents the weighted average price determined by the average exercise price of $5.243 per share at which
options for 13,813,190 shares under the Incentive Plan have been granted to date.
(footnotes continued on next page)
<PAGE> 2
(5) Represents the total number of shares currently reserved or available for issuance upon the exercise of stock
options pursuant to the Directors' Option Plan, as adjusted to reflect the exchange ratio of 2.05 shares of
Roslyn common stock for each share of T R Financial common stock. This is pursuant to 17 C.F.R. ss.457.
(6) Represents the weighted average price determined by the average exercise price of $3.667 per share at which
options for 844,074 shares under the Director's Option Plan have been granted to date.
</TABLE>
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SS.230.462.
Number of Pages 49
Exhibit Index begins on Page 12
2
<PAGE> 3
ROSLYN BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. Roslyn Bancorp, Inc. (the "Issuer" or "Roslyn") is offering shares
of its common stock pursuant to these plans because in the mergers of T R
Financial Corp. into Roslyn, Roslyn succeeded to T R Financial Corp.'s
obligations under the Plans. The documents containing the information for the
Roslyn Bancorp, Inc. (the "Company" or the "Registrant") T R Financial Corp.
1993 Incentive Stock Option Plan amended and restated effective as of January
23, 1997 (the "Incentive Plan") and T R Financial Corp. 1993 Stock Option Plan
for Outside Directors required by Part I of the Registration Statement will
be sent or given to the participants in the Plan as specified by Rule 428(b)(1).
Such documents are not filed with the Securities and Exchange Commission (the
"SEC") either as a part of this Registration Statement or as a prospectus or
prospectus supplement pursuant to Rule 424 in reliance on Rule 428.
All information contained in this Prospectus relating to Roslyn and its
subsidiaries has been supplied by Roslyn and all pro forma information was
prepared by Roslyn. All information contained in this Prospectus relating to
T R Financial and its subsdiaries has been supplied by T R Financial.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this Registration Statement:
(a) The Annual Report on Form 10-K filed by the Registrant for the
fiscal year ended December 31, 1997 (File No. 0-28886) with the SEC on March 31,
1998, which includes the consolidated statements of financial condition of
Roslyn Bancorp, Inc. and subsidiary as of December 31, 1997 and 1996, and the
related consolidated statements of income, changes in stockholders' equity, and
cash flows for each of the years in the three year period ended December 31,
1997, together with the related notes and the report of KPMG Peat Marwick LLP,
independent certified public accountants.
(b) The Amendment No. 1 to the Annual Report on Form 10-K/A filed by
the Registrant for the fiscal year ended December 31, 1997 (File No. 0-28886),
filed with the SEC on November 16, 1998.
(c) The Quarterly Report on Form 10-Q filed by the Registrant for the
fiscal quarter ended March 31, 1998 (File No. 0-28886), filed with the SEC on
May 14, 1998.
(d) The Quarterly Report on Form 10-Q filed by the Registrant for the
fiscal quarter ended June 30, 1998 (File No. 0-28886), filed with the SEC on
August 13, 1998.
(e) The Quarterly Report on Form 10-Q filed by the Registrant for the
fiscal quarter ended September 30, 1998 (File No. 0-28886), filed with the SEC
on November 16, 1998.
(f) The Current Report on Form 8-K filed by the Registrant with the SEC
on June 3, 1998 (File No. 0-28886).
(g) The Current Report on Form 8-K filed by the Registrant with the SEC
on July 22, 1998 (File No. 0-28886).
3
<PAGE> 4
(h) The Current Report on Form 8-K filed by the Registrant with the SEC
on December 31, 1998 (File No. 0-28886).
(i) The description of Registrant's Common Stock contained in
Registrant's Form S-4 (File No. 0-28886), as filed with the SEC on November 16,
1998.
(j) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ( the
"Exchange Act") after the date hereof and prior to the filing of a
post-effective amendment which deregisters all securities then remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, 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 OTHER SUBSEQUENTLY
FILED DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY
REFERENCE HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO
MODIFIED OR SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED,
TO CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the Common Stock offered hereby has been passed upon by
Muldoon, Murphy & Faucette LLP, Washington, DC, for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, empowers a Delaware corporation to indemnify any person who was or 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, (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person conduct was
unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as adjudged liable to the corporation. Any
4
<PAGE> 5
such indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Any such indemnification and advancement of expenses provided under
Section 145 shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators.
Section 145 further 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, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
The Registrant has also entered into employment agreements with certain
executive officers, which agreements require that the Registrant maintain a
directors' and officers' liability policy for the benefit of such officers and
that the Registrant will indemnify such officers and their heirs to the fullest
extent permitted by law.
In addition, pursuant to the Merger Agreement, the Registrant has
agreed that, for a period of six years following the effective time of the
Merger, the Registrant will indemnify and hold harmless each present and former
director and officer of T R Financial or its direct or indirect subsidiaries,
and each officer or employee of T R Financial or its direct or indirect
subsidiaries who is serving or has served as a director or trustee of another
entity expressly at T R Financial's request or direction, with respect to
matters existing or occurring at or prior to the effective time of the Merger,
whether asserted or claimed prior to, at or after the effective time. The
Registrant has also agreed in the Merger Agreement to maintain, for a period of
six years following the effective time of the Merger, the directors' and
officers' liability insurance coverage maintained by T R Financial (or
substantially equivalent coverage under substitute policies) with respect to any
claims arising out of any actions or omissions occurring at or prior to the
effective time of the Merger.
In accordance with the DGCL (being Chapter 1 of Title 8 of the Delaware
Code), Articles 10 and 11 of the Registrant's Certificate of Incorporation
provide as follows:
TENTH:
A. Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is
or was a Director or an Officer of the Corporation or is or was serving
at the request of the Corporation as a Director, Officer, employee or
agent of another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to an employee
benefit plan (hereinafter an "indemnitee"), 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, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter
be amended (but, in the case
5
<PAGE> 6
of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgment,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section C
hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this
Article TENTH shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter and "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a Director or Officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including,
without limitation, services to an employee benefit plan) shall be made
only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal
(hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Section or
otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who
has ceased to be a Director, Officer, employee or agent and shall inure
to the benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is
not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable
period shall be twenty days, the indemnitee may at any time thereafter
bring suit against the Corporation 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 Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expenses of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense
that, and (ii) in any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption
that the indemnitee has not met the applicable standard
6
<PAGE> 7
of conduct or, in the case of such a suit brought by the indemnitee, be
a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article TENTH or otherwise shall be on the
Corporation.
D. The rights to indemnification and to the advancement of
expenses conferred in this Article TENTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or Disinterested Directors or
otherwise.
E. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer, employee or agent of the
Corporation or subsidiary or Affiliate or another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article TENTH with
respect to the indemnification and advancement of expenses of Directors
and Officers of the Corporation.
ELEVENTH: A Director of this Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability: (i) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the Director derived an
improper personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
7
<PAGE> 8
ITEM 8. LIST OF EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
4 Stock Certificate of Roslyn Bancorp, Inc.1
5 Opinion of Muldoon, Murphy & Faucette LLP, Washington, DC,
as to the legality of the Common Stock registered hereby.
10.1 Form of Roslyn Bancorp, Inc. Stock Option Assumption
Agreement for TR Financial Corp. 1993 Incentive Stock
Option Plan.
10.2 Form of Roslyn Bancorp, Inc. Stock Option Assumption
Agreement for TR Financial Corp. 1993 Stock Option Plan for
Outside Directors.
23.1 Consent of Muldoon, Murphy & Faucette LLP (contained in the
opinion included as Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney is located on the signature pages.
- --------------------------
1 Incorporated herein by reference from the Exhibit of the same number contained
in the Registration Statement on Form S-1 (SEC No. 333-10471), as amended,
filed with the SEC on August 20, 1996 and declared effective on October 10,
1996.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this
Registration Statement to:
(i) Include any Prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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 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 end of the estimated
maximum offering range may be reflected in the
form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no
more than a 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) 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;
8
<PAGE> 9
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
(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 the 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
registered that remain unsold at the termination of
the Offering.
(b) The undersigned hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Registrant's or the Plan's annual report
pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
9
<PAGE> 10
CONFORMED
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Roslyn Bancorp, Inc. 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 Roslyn, State of New York, on February 16,
1999.
ROSLYN BANCORP, INC.
By: /s/ Joseph L. Mancino
-----------------------------------
Joseph L. Mancino
Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Mancino) constitutes and appoints Joseph L. Mancino as the
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 or all amendments to the Form S-8 Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Name Title Date
---- ----- ----
/s/ Joseph L. Mancino Chairman of the Board, President February 16, 1999
- --------------------------- and Chief Executive Officer
Joseph L. Mancino (principal executive officer)
/s/ John R. Bransfield, Jr. Vice President and Director February 16, 1999
- ---------------------------
John R. Bransfield, Jr.
/s/ Michael P. Puorro Treasurer and Chief Financial February 16, 1999
- --------------------------- Officer (principal accounting
Michael P. Puorro and financial officer)
10
<PAGE> 11
/s/ Thomas A. Doherty Director February 16, 1999
- ----------------------------
Thomas A. Doherty
/s/ Victor C. McCuaig Director February 16, 1999
- ----------------------------
Victor C. McCuaig
/s/ John P. Nicholson Director February 16, 1999
- ----------------------------
John P. Nicholson
/s/ James E. Swigget Director February 16, 1999
- ----------------------------
James E. Swigget
/s/ Robert G. Freese Director February 16, 1999
- ----------------------------
Robert G. Freese
/s/ Thomas J. Calabrese, Jr. Director February 16, 1999
- ----------------------------
Thomas J. Calabrese, Jr.
/s/ Dr. Edwin W. Martin, Jr. Director February 16, 1999
- ----------------------------
Dr. Edwin W. Martin, Jr.
/s/ Richard C. Webel Director February 16, 1999
- ----------------------------
Richard C. Webel
11
<PAGE> 12
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
- ----------------- ----------------------------- ---------------------------------------------------- ----------------
<S> <C> <C> <C>
4 Stock Certificate of Incorporated herein by reference from the Exhibits --
Roslyn Bancorp, Inc. of the Registrant's Registration Statement on Form
S-1 filed with the SEC on August 20, 1996 and
declared effective on October 10, 1996.
5 Opinion of Muldoon, Filed herewith.
Murphy & Faucette LLP
10.1 Form of Roslyn Bancorp, Filed herewith.
Inc. Stock Option
Assumption Agreement
for T R Financial Corp.
1993 Incentive Stock
Option Plan
10.2 Form of Roslyn Bancorp, Filed herewith.
Inc. Stock Option
Assumption Agreement
for T R Financial Corp.
1993 Stock Option Plan
for Outside Directors
10.3 T R Financial Corp. 1993 Filed herewith.
Incentive Stock Option
Plan
10.4 T R Financial Corp. 1993 Filed herewith.
Stock Option Plan for
Outside Directors
23.1 Consent of Muldoon, Contained in Exhibit 5 hereof.
Murphy & Faucette LLP
23.2 Consent of KPMG LLP Filed herewith.
24 Power of Attorney Located on the signature page. 10
</TABLE>
12
<PAGE> 1
Exhibit 5 Opinion of Muldoon, Murphy & Faucette LLP re: legality
<PAGE> 2
February 16, 1999
Board of Directors
Roslyn Bancorp, Inc.
1400 Old Northern Boulevard
Roslyn, New York 11576
Re: T R Financial Corp. 1993 Incentive Stock Option Plan and
T R Financial Corp. 1993 Stock Option Plan for Outside Directors
Gentlemen:
We have been requested by Roslyn Bancorp, Inc. (the "Company") to issue
a legal opinion in connection with the registration under the Securities Act of
1933 on Form S-8 of 2,940,488 shares of the Company's common stock, $.01 par
value, that may be issued under the T R Financial Corp. 1993 Incentive Stock
Option Plan Amended and Restated Effective as of January 23, 1997 (the "Plan")
and of 643,608 shares of the Company's common stock, $.01 par value, that may be
issued under the T R Financial Corp. 1993 Stock Option Plan for Outside
Directors (the "Directors' Option Plan"), (collectively, the "Shares"). We
understand that the Company will succeed to the obligations of T R Financial
Corp. under the Plan and the Directors' Option Plan upon the consummation of the
acquisition of T R Financial Corp. by the Company on February 16, 1999.
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity with the originals of all documents supplied to us as copies, and
(iv) the accuracy and completeness of all corporate records and documents and of
all certificates and statements of fact, in each case given or made available to
us by the Company or its subsidiary, The Roslyn Savings Bank.
Based on the foregoing and limited in all respects to Delaware law, it
is our opinion that the shares of T R Financial Corp. common stock reserved
under the Plan and the Directors' Option Plan upon the occurrence of the
acquisition of T R Financial Corp. by the Company become shares of the Company,
in an amount adjusted to reflect the exchange ratio of 2.05 shares of Company
common
<PAGE> 3
Board of Directors
February 16, 1999
Page 2
stock for each share of T R Financial Corp. common stock, and have been duly
authorized and upon payment for and issuance of the Shares in the manner
described in the Plan and in the Directors' Option Plan, will be legally issued,
fully paid and nonassessable.
The following provisions of the Certificate of Incorporation of the
Company may not be given effect by a court applying Delaware law, but in our
opinion the failure to give effect to such provisions will not affect the duly
authorized, validly issued, fully paid and nonassessable status of the common
stock:
(a) Subsections C.3 and C.6 of Article FOURTH and Section D of Article
EIGHTH, which grant the Board the authority to construe and apply the provisions
of those Articles, subsection C.4 of Article FOURTH, to the extent that
subsection obligates any person to provide to the Board the information such
subsection authorizes the Board to demand, and the provision of subsection C.7
of Article EIGHTH authorizing the Board to determine the Fair Market Value of
property offered or paid for the Company's stock by an Interested Stockholder,
in each case to the extent, if any, that a court applying Delaware law were to
impose equitable limitations upon such authority; and
(b) Article NINTH, which authorizes the Board to consider the effect
of any offer to acquire the Company on constituencies other than stockholders
in evaluating any such offer.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-8, and we consent to the use of the
name of our firm under the heading "Interests of Named Experts and Counsel."
Sincerely,
/s/ MULDOON, MURPHY & FAUCETTE LLP
<PAGE> 1
Exhibit 10.1 Stock Option Assumption Agreement
<PAGE> 2
ROSLYN BANCORP, INC.
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE:
STOCK OPTION ASSUMPTION AGREEMENT issued as of the day of February,
----
1999 by ROSLYN BANCORP, INC., a Delaware corporation ("Roslyn").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding options to purchase shares of the common stock of T R Financial
Corp., a Delaware corporation ("TRFC"), which were granted to Optionee under the
TRFC 1993 Incentive Stock Option Plan (the "ISO Plan") and are evidenced by one
or more Stock Option Agreements (the "Option Agreement(s)") between TRFC and
Optionee, which are incorporated by reference herein.
WHEREAS, effective as of , TRFC has merged with and into
------------
Roslyn (the "Merger") pursuant to the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of May 25, 1998, by and between Roslyn and TRFC;
WHEREAS, the Merger Agreement provides for the conversion of all
outstanding stock options under the ISO Plan into options to purchase Roslyn
common stock ("Roslyn Stock"), and to issue to the holder of each outstanding
option an agreement evidencing the conversion and assumption of such option;
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio (the "Exchange Ratio") in effect for the Merger is 2.05 shares of Roslyn
Stock for each outstanding share of TRFC common stock ("TRFC Stock");
WHEREAS, this Stock Option Assumption Agreement is to become effective
immediately in order to reflect certain adjustments to Optionee's outstanding
options under the ISO Plan, which have become necessary by reason of the
assumption of those options by Roslyn in connection with the Merger;
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of Roslyn Stock subject to the stock options held
by Optionee under the ISO Plan immediately prior to the Effective Time (as
defined in the Merger Agreement) of the Merger (the "TRFC Options") and the
exercise price payable per share are set forth in Exhibit A hereto. Roslyn
hereby assumes, as of the Effective Time, all the duties and obligations of TRFC
under each of the TRFC Options as set forth in the ISO Plan and the Optionee's
Option Agreement(s). In connection with such assumption, the number of shares of
Roslyn Stock purchasable under each TRFC Option hereby assumed and the exercise
price payable thereunder have been adjusted to reflect the Exchange Ratio in a
manner consistent with the Merger Agreement. Accordingly, the number of shares
of Roslyn Stock subject to each TRFC Option hereby assumed
<PAGE> 3
shall be as specified for that option in attached Exhibit A, and the adjusted
exercise price payable per share of Roslyn Stock under the assumed TRFC Option
shall be as indicated for that option in attached Exhibit A.
2. The following provisions shall govern each TRFC Option hereby assumed
by Roslyn:
(a) Unless the context otherwise requires, all references in each
Option Agreement and in the ISO Plan (as incorporated into such Option
Agreement) (i) to the "Company" shall mean Roslyn, (ii) to "Stock" shall
mean shares of Roslyn Stock, (iii) to the "Board" shall mean the Board of
Directors of Roslyn and (iv) to the "Committee" shall mean the Personnel
Committee of the Roslyn Board of Directors.
(b) The grant date and the expiration date of each assumed TRFC
Option and all other provisions which govern either the exercisability or
the termination of the assumed TRFC Option shall remain the same as set
forth in the Option Agreement applicable to that option and the provisions
of the ISO Plan, and shall accordingly govern and control Optionee's
rights under this Stock Option Assumption Agreement to purchase Roslyn
Stock.
(c) For purposes of applying any and all provisions of the Option
Agreement relating to Optionee's status as an employee, Optionee shall be
deemed to continue in such status as an employee for so long as Optionee
renders services as an employee of Roslyn or any Roslyn subsidiary (within
the meaning of a "subsidiary corporation" as defined in Section 424(f) of
the Internal Revenue Code of 1986, as amended). Accordingly, the
provisions of the Option Agreement governing the termination of the
assumed TRFC Options upon Optionee's cessation of service as an employee
of TRFC shall hereafter be applied on the basis of Optionee's cessation of
employee or nonemployee director's status with Roslyn and its
subsidiaries, and each assumed TRFC Option shall accordingly terminate,
within the designated time period in effect under the Option Agreement for
that option, following such cessation of service as an employee of Roslyn
and its subsidiaries.
(d) The adjusted exercise price payable for the Roslyn Stock subject
to each assumed TRFC Option shall be payable in any of the forms
authorized under the ISO Plan and the Option Agreement applicable to that
option.
(e) In order to exercise each assumed TRFC Option, Optionee must
deliver to Roslyn a written notice of exercise in which the number of
shares of Roslyn Stock to be purchased thereunder must be indicated. The
exercise notice must be accompanied by payment of the adjusted exercise
price payable for the purchased shares of Roslyn Stock and should be
delivered to Roslyn at the following address:
Roslyn Bancorp, Inc.
Attn: Human Resources Department
The Roslyn Savings Bank
2 Seaview Boulevard
Port Washington, New York 11050
<PAGE> 4
3. Except to the extent specifically modified by this Stock Option
Assumption Agreement, all of the terms and conditions of each Option Agreement
as in effect immediately prior to the Acquisition shall continue in full force
and effect and shall not in any way be amended, revised or otherwise affected by
this Stock Option Assumption Agreement.
IN WITNESS WHEREOF, Roslyn has caused this Stock Option Assumption
Agreement to be executed on its behalf by its duly authorized officer as of the
day of February, 1999.
- ---
ROSLYN BANCORP, INC.
By:
-------------------------
Title:
----------------------
ACKNOWLEDGMENT
The undersigned acknowledges receipt of this foregoing Stock Option
Assumption Agreement and understands and acknowledges that all rights and
liabilities with respect to each of his or her TRFC Options hereby assumed by
Roslyn are as set forth only in the Option Agreement, the ISO Plan and this
Stock Option Assumption Agreement and that no other agreements exist with
respect to his TRFC Options. The undersigned also acknowledges that, except to
the extent specifically modified by this Stock Option Assumption Agreement, all
of the terms and conditions of the Option Agreement as in effect immediately
prior to the effective time shall continue in full force and effect and shall
not in any way be amended, revised or otherwise affected by this Stock Option
Assumption Agreement. The undersigned further acknowledges that the TRFC Option
or Options described in Exhibit A hereto constitute all of the options or other
rights to purchase TRFC Stock that he or she owned immediately prior to the
effective time of the Merger.
, Optionee
-------------------------
DATED: , 1999
------------------
<PAGE> 5
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares
of T R Financial Corp.
(Pre-Merger)
DATE OF OPTION AGREEMENT NUMBER OF OPTIONS EXERCISE PRICE
- ------------------------ ---------------- --------------
Optionee's Outstanding Options to Purchase Shares
of Roslyn Bancorp, Inc. Common Stock
(Post-Merger)
DATE OF OPTION AGREEMENT ADJUSTED NUMBER OF OPTIONS ADJUSTED EXERCISE PRICE
- ------------------------ -------------------------- -----------------------
<PAGE> 1
Exhibit 10.2 Directors Stock Option Assumption Agreement
<PAGE> 2
ROSLYN BANCORP, INC.
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE:
STOCK OPTION ASSUMPTION AGREEMENT issued as of the day of February,
----
1999 by ROSLYN BANCORP, INC., a Delaware corporation ("Roslyn").
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding options to purchase shares of the common stock of T R Financial
Corp., a Delaware corporation ("TRFC"), which were granted to Optionee under the
TRFC 1993 Stock Option Plan for Outside Directors (the "Director Plan") and are
evidenced by one or more Stock Option Agreements (the "Option Agreement(s)")
between TRFC and Optionee, which are incorporated by reference herein.
WHEREAS, effective as of , TRFC has merged with and into
-------------
Roslyn (the "Merger") pursuant to the Agreement and Plan of Merger (the
"Agreement"), dated as of May 25, 1998 by and between Roslyn and TRFC;
WHEREAS, the Merger Agreement provides for the conversion of all
outstanding stock options under the Director Plan into options to purchase
Roslyn common stock ("Roslyn Stock") and to issue to the holder of each
outstanding option an agreement evidencing the assumption of such option;
WHEREAS, pursuant to the provisions of the Agreement, the exchange ratio
(the "Exchange Ratio") in effect for the Merger is 2.05 shares of Roslyn Stock
for each outstanding share of TRFC common stock ("TRFC Stock");
WHEREAS, this Stock Option Assumption Agreement is to become effective
immediately in order to reflect certain adjustments to Optionee's outstanding
options under the Director Plan, which have become necessary by reason of the
assumption of those options by Roslyn in connection with the Merger;
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of Roslyn Stock subject to the stock options held
by Optionee under the Director Plan immediately prior to the Effective Time (as
defined in the Merger Agreement) of the Merger (the "TRFC Options") and the
exercise price payable per share are set forth in Exhibit A hereto. Roslyn
hereby assumes, as of the Effective Time, all the duties and obligations of TRFC
under each of the TRFC Options as set forth in the Director Plan and the
Optionee's Option Agreement(s). In connection with such assumption, the number
of shares of Roslyn Stock purchasable under each TRFC Option hereby assumed and
the exercise price payable thereunder have been adjusted to reflect the Exchange
Ratio. Accordingly, the number of shares of
<PAGE> 3
Roslyn Stock subject to each TRFC Option hereby assumed shall be as specified
for that option in attached Exhibit A, and the adjusted exercise price payable
per share of Roslyn Stock under the assumed TRFC Option shall be as indicated
for that option in attached Exhibit A.
2. The following provisions shall govern each TRFC Option hereby assumed
by Roslyn:
(a) Unless the context otherwise requires, all references in each
Option Agreement and in the Director Plan (as incorporated into such
Option Agreement) (i) to the "Company" shall mean Roslyn, (ii) to "Stock"
shall mean shares of Roslyn Stock, (iii) to the "Board" shall mean the
Board of Directors of Roslyn and (iv) to the "Committee" shall mean the
Compensation Committee of the Roslyn Board of Directors.
(b) The grant date and the expiration date of each assumed TRFC
Option and all other provisions which govern either the exercisability or
the termination of the assumed TRFC Option shall remain the same as set
forth in the Option Agreement applicable to that option and the provisions
of the Director Plan, and shall accordingly govern and control Optionee's
rights under this Stock Option Assumption Agreement to purchase Roslyn
Stock.
(c) The adjusted exercise price payable for the Roslyn Stock subject
to each assumed TRFC Option shall be payable in any of the forms
authorized under the Director Plan and the Option Agreement applicable to
that option.
(d) In order to exercise each assumed TRFC Option, Optionee must
deliver to Roslyn a written notice of exercise in which the number of
shares of Roslyn Stock to be purchased thereunder must be indicated. The
exercise notice must be accompanied by payment of the adjusted exercise
price payable for the purchased shares of Roslyn Stock and should be
delivered to Roslyn at the following address:
Roslyn Bancorp, Inc.
Attn: Human Resources Department
The Roslyn Savings Bank
2 Seaview Boulevard
Port Washington, NY 11050
3. Except to the extent specifically modified by this Stock Option
Assumption Agreement, all of the terms and conditions of each Option Agreement
as in effect immediately prior to the Acquisition shall continue in full force
and effect and shall not in any way be amended, revised or otherwise affected by
this Stock Option Assumption Agreement.
<PAGE> 4
IN WITNESS WHEREOF, Roslyn has caused this Stock Option Assumption
Agreement to be executed on its behalf by its duly authorized officer as of the
day of February, 1999.
- ---
ROSLYN BANCORP, INC.
By:
-----------------------
Title:
--------------------
ACKNOWLEDGMENT
The undersigned acknowledges receipt of this foregoing Stock Option
Assumption Agreement and understands and acknowledges that all rights and
liabilities with respect to each of his or her TRFC Options hereby assumed by
Roslyn are as set forth only in the Option Agreement, the Director Plan and this
Stock Option Assumption Agreement and that no other agreements exist with
respect to his TRFC Options. The undersigned also acknowledges that, except to
the extent specifically modified by this Stock Option Assumption Agreement, all
of the terms and conditions of the Option Agreement as in effect immediately
prior to the effective time shall continue in full force and effect and shall
not in any way be amended, revised or otherwise affected by this Stock Option
Assumption Agreement. The undersigned further acknowledges that the TRFC Option
or Options described in Exhibit A hereto constitute all of the options or other
rights to purchase TRFC Stock that he or she owned immediately prior to the
effective time of the Merger.
, Optionee
-------------------
DATED: , 1999
------------------
<PAGE> 5
EXHIBIT A
Optionee's Outstanding Options to Purchase Shares
of T R Financial Corp.
(Pre-Merger)
DATE OF OPTION AGREEMENT NUMBER OF OPTIONS EXERCISE PRICE
- ------------------------ ----------------- --------------
Optionee's Outstanding Options to Purchase Shares
of Roslyn Bancorp, Inc. Common Stock
(Post-Merger)
DATE OF OPTION AGREEMENT ADJUSTED NUMBER OF OPTIONS ADJUSTED EXERCISE PRICE
- ------------------------ -------------------------- -----------------------
<PAGE> 1
Exhibit 10.3 1993 Incentive Stock Option Plan
<PAGE> 2
T R FINANCIAL CORP.
1993 INCENTIVE STOCK OPTION PLAN
AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 23, 1997
1. PURPOSE.
The purpose of the T R Financial Corp. 1993 Incentive Stock Option Plan,
as amended and restated as of January 23, 1997 (the "Plan"), is to advance the
interests of T R Financial Corp. (the "Company") and its stockholders by
providing those employees of the Company and its Affiliates, as hereinafter
defined, including Roosevelt Savings Bank (the "Bank"), upon whose judgment.
initiative and efforts the successful conduct of the business of the Company and
its Affiliates largely depends, with additional incentive to perform in a
superior manner. A purpose of the Plan is also to attract people of experience
and ability to the service of the Company and its Affiliates.
2. DEFINITIONS.
The following definitions shall apply for the purposes of this Plan,
unless a different meaning is plainly indicated by the context:
(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Company is a member or (ii) an unincorporated trade or business
which is under common control with the Company as determined in accordance with
Section 414(c) of the Code and the regulations issued thereunder. For purposes
hereof, a "controlled group of corporations" shall mean a controlled group of
corporations as defined in Section 1563(a) of the Code determined without regard
to Sections 1563(a)(4) and (e)(3)(C).
(b) "Award" means a grant of Non-Statutory Stock Options, Incentive Stock
Options, and/or Limited Rights under the provisions of this Plan.
(c) "Beneficiary" means the person or persons designated by a Participant,
or otherwise determined to be entitled to a benefit under the Plan, under
Section 14.
(d) "Board of Directors" or "Board" means the board of directors of the
Company.
(e) "Change in Control" means an event of a nature that: (i) would be
required to be reported in response to Item 1(a) of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); (ii) results
in a Change in Control of the Bank or the Company within the meaning of the
Change in Bank Control Act and the Rules and Regulations promulgated by the
Federal Deposit Insurance Corporation (the "FDIC") at 12 C.F.R. ss. 303.4(a)
with respect to the Bank and the Board of Governors of the Federal Reserve
System ("FRB") at 12 C.F.R. ss. 225.41(b) with respect to the Company, as in
effect on the date hereof, but excluding any such Change in Control resulting
from the purchase of securities by the Company's or the Bank's tax-qualified
employee benefit plans and
<PAGE> 3
trusts; (iii) results in a transaction requiring prior FRB approval under the
Bank Holding Company Act of 1956, as amended, and the regulations promulgated
thereunder by the FRB at 12 C.F.R. ss. 225.11, as in effect on the date hereof,
except for the Company's acquisition of the Bank and any transaction resulting
from the purchase of securities by the Company's or the Bank's tax-qualified
employee benefit plans and trusts: or (iv) without limitation, such a Change in
Control shall be deemed to have occurred at such time as (a) any "person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Bank or the Company representing
20% or more of the Bank's or the Company's outstanding securities except for any
securities of the Bank purchased by the Company in connection with the initial
conversion of the Bank from mutual to stock form (the "Conversion") and any
securities purchased by the Company's or the Bank's tax-qualified employee
benefit plans and trusts; or (b) individuals who constitute the Board on the
date hereof (the "Incumbent Board") cease for any reason to constitute at least
a majority thereof, provided that any person becoming a director subsequent to
the date hereof whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by the Company's stockholders was approved by the same Nominating
Committee serving under an Incumbent Board, shall be, for purposes of this
clause (b), considered as though he were a member of the Incumbent Board, but
excluding, for this purpose, any such person whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the Board; or (c)
a plan of reorganization. merger, consolidation, sale of all or substantially
all the assets of the Bank or the Company or similar transaction occurs in which
the Bank or Company is not the resulting entity; or (d) a proxy statement shall
be distributed soliciting proxies from stockholders of the Company, by someone
other than the current management of the Company, seeking stockholder approval
of a plan of reorganization, merger or consolidation of the Company or Bank or
similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to such plan or
transaction are exchanged for or convened into cash or property or securities
not issued by the Bank or the Company; or (e) a tender offer is made for 20% or
more of the voting securities of the Bank or Company then outstanding.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means a committee consisting of two or more members of the
Board, each of whom (i) is not a current employee of the Company or a subsidiary
thereof, (ii) is not a former employee of the Company who receives compensation
for prior services for the Company (other than benefits under a tax-qualified
retirement plan) during the taxable year, (iii) is not currently and has not
been an officer of the Company or a subsidiary thereof, (iv) does not receive
remuneration or consideration from the Company or a subsidiary thereof, either
directly or indirectly, for services rendered in any capacity other than as a
director and (v) does not possess an interest in any other transaction, and is
not engaged in a business relationship, for which disclosure would be required
pursuant to Item 404(a) or (b) of the proxy solicitation rules of the Securities
and Exchange Commission. Each member of the Committee shall be a "non-employee
director" as such term is
2
<PAGE> 4
defined under Rule 16b-3 under the Exchange Act and an "outside director" as
such term is defined under Section 162(m) of the Code and any regulations
thereunder.
(h) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(i) "Common Stock" means the Common Stock of the Company, par value $.01
per share.
(j) "Disability" means disability as defined in the Bank's Retirement
Plan, or if not so defined, it shall mean a condition of total incapacity,
mental or physical, preventing further performance of duties with the Company or
the Bank, which the Board shall have determined, on the basis of competent
medical evidence, is likely to be permanent.
(k) "Fair Market Value" means, with respect to a share of Common Stock on
a specified date:
(l) the final reported sales price on the date in question (or if
there is no reported sale on such date, on the last preceding date on
which any reported sale occurred) as reported in the principal
consolidated reporting system with respect to securities listed or
admitted to trading on the principal United States securities exchange on
which the shares of Common Stock are listed or admitted to trading; or
(ii) if the shares of Common Stock are not listed or admitted to
trading on any such exchange, the closing bid quotation with respect to a
share of Common Stock on such date on the Nasdaq Stock Market, or, if no
such quotation is provided, on another similar system, selected by the
Committee, then in use; or
(iii) if Sections 2(k)(i) and (ii) are not applicable, the fair
market value of a share of Common Stock as the Committee may determine.
For purposes of the grant of Options in the Conversion, Fair Market Value shall
mean the initial public offering price of the Common Stock.
(l) "Incentive Stock Option" means an Option granted by the Committee to a
Participant, which Option is designed as an Incentive Stock Option pursuant to
Section 8.
(m) "Limited Right" means the right to receive an amount of cash based
upon the terms set forth in Section 9.
(n) "Non-statutory Stock Option" means an Option granted by the Committee
to a Participant, which is not designated by the Committee as an Incentive Stock
Option.
3
<PAGE> 5
(o) "Option" means an Award granted under Section 7 or Section 8.
(p) "Participant" means an employee of the Company or its Affiliates
chosen by the Committee to participate in the Plan.
(q) "Plan" means the T R Financial Corp. 1993 Incentive Stock Option
Plan, as amended from time to time, and may be referred to as the "T R Financial
Corp. 1993 Incentive Stock Option Plan."
(r) "Plan Year(s)" means a calendar year or years commencing on or after
January 1, 1993.
(s) "Retirement" means retirement at the normal or early retirement date
as set forth in the Retirement Plan of Roosevelt Savings Bank in RSI Retirement
Trust, or, if such plan has been terminated, in any other tax-qualified
retirement or pension plan of the Bank.
(t) "Termination for Cause" means the termination upon an intentional
failure to perform stated duties, breach of a fiduciary duty involving personal
dishonesty, which results in material loss to the Company or one of its
Affiliates or willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or a final cease-and-desist order which
results in material loss to the Company or one of its Affiliates.
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it sees necessary for the proper administration of the Plan and
to make whatever determinations and interpretations in connection with the Plan
it sees as necessary or advisable. All determinations and interpretations made
by the Committee shall be binding and conclusive on all Participants in the Plan
and on their legal representatives and beneficiaries.
4. TYPES OF AWARDS.
Awards under the Plan may be granted in any one or a combination of:
(a) Non-statutory Stock Options;
(b) Incentive Stock Options; and
(c) Limited Rights
as defined below in paragraphs 7 through 9 of the Plan.
4
<PAGE> 6
5. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 15, the maximum number of
shares of Common Stock reserved for purchase pursuant to the exercise of Options
granted under the Plan is 1,288,275 shares of Common Stock. These shares of
Common Stock may be either authorized but unissued shares or shares previously
issued and reacquired by the Company. To the extent that Options or Limited
Rights are granted under the Plan, the shares underlying such Options will be
unavailable for future grants under the Plan except that, to the extent that
Options together with any related Limited Rights granted under the Plan
terminate, expire or are cancelled without having been exercised (in the case of
Limited Rights, exercised for cash), new Awards may be made with respect to
these shares.
6. ELIGIBILITY.
Officers and other employees of the Company or its Affiliates shall be
eligible to receive Incentive Stock Options, Non-statutory Stock Options and/or
Limited Rights under the Plan. Directors who are not employees or officers of
the Company or its Affiliates shall not be eligible to receive Awards under the
Plan.
7. NON-STATUTORY STOCK OPTIONS.
7.1 GRANT OF NON-STATUTORY STOCK OPTIONS.
The Committee may, from time to time, grant Non-statutory Stock Options to
eligible employees and, upon such terms and conditions as the Committee may
determine, grant Non- statutory Stock Options in exchange for and upon surrender
of previously granted Awards under this Plan. Non-statutory Stock Options
granted under this Plan are subject to the following terms and conditions:
(a) PRICE. The exercise price per share of Common Stock which shall
be deliverable upon the exercise of each Non-statutory Stock Option shall
be determined by the Committee on the date the Option is granted. Such
exercise price shall not be less than 100% of the Fair Market Value of the
Company's Common Stock on the Date of Grant. Shares may be purchased only
upon full payment of the exercise price. Non-statutory Stock Options may
be exercised pursuant to a "cashless exercise" of an Option in accordance
with applicable securities laws. Payment of the exercise price may be
made, in whole or in part through the surrender of shares of the Common
Stock of the Company at the Fair Market Value of such shares on the date
of surrender.
(b) TERMS OF OPTIONS. The term during which each Non-statutory Stock
Option may be exercised shall be determined by the Committee, but in no
event shall a Non- statutory Stock Option be exercisable in whole or in
part more than 10 years from the Date of Grant. The Committee shall
determine the date on which each Non-statutory Stock Option
5
<PAGE> 7
shall become exercisable and may provide that a Non-statutory Stock Option
shall become exercisable in installments. The shares comprising each
installment may be purchased in whole or in part at any time after such
installment becomes exercisable. The Committee may, in its sole
discretion, accelerate the time at which any Non-statutory Stock Option
may be exercised in whole or in part. Notwithstanding the above, in the
event of a Change in Control of the Company, all Non-statutory Stock
Options shall become immediately exercisable.
(c) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's employment with the Bank or the Company for any reason other
than Disability, Retirement, death, Change in Control or Termination for
Cause, the Participant's Non-statutory Stock Options shall be exercisable
only as to those shares which were immediately purchasable by the
Participant at the date of termination and only for a period of three
months following such termination. In the event of Termination for Cause,
all rights under the Participant's Non-statutory Stock Options shall
expire upon the date of such termination. In the event of the death,
Disability, Change in Control or Retirement of any Participant, all
Non-statutory Stock Options held by the Participant, whether or not
exercisable at such time, shall be exercisable by the Participant or such
Participant's legal representatives or Beneficiaries for one year or such
longer period as determined by the Committee following the date of the
Change in Control or the Participant's death, Retirement or cessation of
employment due to Disability, provided that in no event shall the period
extend beyond the expiration of the Non-statutory Stock Option term.
8. INCENTIVE STOCK OPTIONS.
8.1 GRANT OF INCENTIVE STOCK OPTIONS.
The Committee may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan shall
be subject to the following terms and conditions:
(a) PRICE. The exercise price per share of Common Stock deliverable
upon the exercise of each Incentive Stock Option shall be not less than
100% of the Fair Market Value of the Company's Common Stock on the Date of
Grant. However, if at the Date of Grant a Participant owns stock
possessing more than 10% of the total combined voting power of all classes
of stock of the Company or of its parent or subsidiary corporation (or,
under Section 424(d) of the Code, is deemed to own stock representing more
than 10% of the total combined voting power of all such classes of stock,
by reason of the ownership of such classes of stock, directly or
indirectly, by or for his brothers and sisters (whether by the whole or
half blood), spouse. ancestors and lineal descendants of such employee, or
by or for any corporation, partnership, estate or trust of which such
employee is a shareholder, partner or beneficiary), the exercise price per
share of Common Stock deliverable upon the exercise of each Incentive
Stock Option shall not be less than 110% of the Fair Market Value
6
<PAGE> 8
of the Company's Common Stock on the Date of Grant. Shares may be
purchased only upon payment of the full exercise price. Incentive Stock
Options may be exercised pursuant to a "cashless exercise" of an Option in
accordance with applicable securities laws. Payment of the exercise price
may be made, in whole or in part, through the surrender of shares of
Common Stock of the Company at the Fair Market Value of such shares on the
date of surrender.
(b) AMOUNTS OF OPTIONS. Incentive Stock Options may be granted to
any eligible employee in such amounts as determined by the Committee. In
the case of an Option intended to qualify as an Incentive Stock Option,
the aggregate Fair Market Value (determined as of the time the Option is
granted) of the Common Stock with respect to which Incentive Stock Options
granted are exercisable for the first time by the Participant during any
calendar year (under all plans of the Participant's employer corporation
and its parent and subsidiary corporations) shall not exceed $100,000. The
provisions of this Section 8.1(b) shall be construed and applied in
accordance with Section 422(d) of the Code and the regulations, if any,
promulgated thereunder. To the extent an Award under this Section 8.1
exceeds this $100,000 limit, the portion of the Award in excess of such
limit shall be deemed a Non-statutory Stock Option.
(c) TERMS OF OPTIONS. The term during which each Incentive Stock
Option may be exercised shall be determined by the Committee, but in no
event shall an Incentive Stock Option be exercisable in whole or in part
more than 10 years from the Date of Grant. If at the time an Incentive
Stock Option is granted to an employee, the employee owns stock
representing more than 10% of the total combined voting power of the
Company or of its parent or subsidiary corporation (or. under Section
424(d) of the Code, is deemed to own stock representing more than 10% of
the total combined voting power of all such classes of stock, by reason of
the ownership of such classes of stock, directly or indirectly, by or for
his brothers and sisters (whether by the whole or half blood), spouse,
ancestors and lineal descendants of such employee, or by or for any
corporation, partnership, estate or trust of which such employee is a
shareholder, partner or beneficiary), the Incentive Stock Option granted
to such employee shall not be exercisable after the expiration of five
years from the Date of Grant. No Incentive Stock Option granted under this
Plan is transferable except by will or the laws of descent and
distribution and is exercisable in his lifetime only by the employee to
whom it is granted.
The Committee shall determine the date on which each Incentive Stock
Option shall become exercisable and may provide that an Incentive Stock
Option shall become exercisable in installments. The shares comprising
each installment may be purchased in whole or in part at any time after
such installment becomes purchasable, provided that the amount able to be
first exercised in a given year is consistent with the terms of Section
422 of the Code. The Committee may, in its sole discretion, accelerate the
time at which any Incentive Stock Option may be exercised in whole or in
part, provided that it is consistent with the terms of Section 422 of the
Code. Notwithstanding the above, in the event of a
7
<PAGE> 9
Change in Control of the Company, all Incentive Stock Options shall become
immediately exercisable.
(d) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's employment with the Company or the Bank for any reason other
than Disability, Retirement, Change in Control, death or Termination for
Cause, the Participant's Incentive Stock Options shall be exercisable only
as to those shares which were immediately purchasable by the Participant
at the date of such termination and only for a period of three months
following such termination. In the event of Termination for Cause, all
rights under the Participant's Incentive Stock Options shall expire upon
such termination. In the event of death or Disability of any employee, all
Incentive Stock Options held by such Participant, whether or not
exercisable at such time, shall be exercisable by the Participant or the
Participant's legal representatives or Beneficiaries for one year
following the date of the Participant's death or cessation of employment
due to Disability. Upon termination of the Participant's service with the
Company due to Retirement or a Change in Control, all Incentive Stock
Options held by such Participant, whether or not exercisable at such time,
shall be exercisable for a period of one year following the date of
Participant's cessation of employment; PROVIDED, HOWEVER, that such Option
shall not be eligible for treatment as an Incentive Stock Option in the
event such Option is exercised more than three months following the date
of the Participant's Retirement. In no event shall the exercise period
extend beyond the expiration of the Incentive Stock Option term.
(e) COMPLIANCE WITH CODE. The Options granted under this Section 8
of the Plan are intended to qualify as incentive stock options within the
meaning of Section 422 of the Code, but the Company makes no warranty as
to the qualification of any Option as an incentive stock option within the
meaning of Section 422 of the Code.
9. LIMITED RIGHTS.
9.1 GRANT OF LIMITED RIGHTS.
Simultaneously with the grant of any Option, the Committee may grant a
Limited Right with respect to all or some of the shares covered by such Option.
Limited Rights granted under this Plan are subject to the following terms and
conditions:
(a) TERMS OF RIGHTS. In no event shall a Limited Right be
exercisable in whole or in part before the expiration of six months from
the Date of Grant of the Limited Right. A Limited Right may be exercised
only in the event of a Change in Control of the Company.
The Limited Right may be exercised only when the underlying Option
is eligible to be exercised, and only when the Fair Market Value of the
underlying shares on the day of exercise is greater than the exercise
price of the related Option.
8
<PAGE> 10
Upon exercise of a Limited Right, the related Option shall cease to
be exercisable. Upon exercise or termination of an Option, any related
Limited Rights shall terminate. The Limited Rights may be for no more than
100% of the difference between the exercise price and the Fair Market
Value of the Common Stock subject to the underlying Option. The Limited
Right is transferable only when the underlying Option is transferable and
under the same conditions.
(b) PAYMENT. Upon exercise of a Limited Right, the holder shall
promptly receive from the Company an amount of cash equal to the
difference between the Fair Market Value on the Date of Grant of the
related Option and the Fair Market Value of the underlying shares on the
date the Limited Right is exercised, multiplied by the number of shares
with respect to which such Limited Right is being exercised.
(c) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's service for any reason other than Termination for Cause, any
Limited Rights held by the Participant shall then be exercisable for a
period of one year following termination. In the event of Termination for
Cause, all Limited Rights held by the Participant shall expire
immediately. Upon termination of the Participant's employment for reason
of death, Retirement or Disability, all Limited Rights held by such
Participant shall be exercisable by the Participant or the Participant's
legal representative or Beneficiaries for a period of one year from the
date of such termination. In no event shall the period extend beyond the
expiration of the term of the related Option.
10. SURRENDER OF OPTIONS.
In the event of a Participant's termination of employment as a result of
death, Disability or Retirement, the Participant (or the Participant's
Beneficiaries, personal representative(s), heir(s), or devisee(s)) may, in a
form acceptable to the Committee make application to surrender all or part of
the Options held by such Participant in exchange for a cash payment from the
Company of an amount equal to the difference between the Fair Market Value of
the Common Stock on the date of termination of employment and the exercise price
per share of the Option on the Date of Grant; PROVIDED, HOWEVER, that in the
event of Retirement, the application must be submitted by the Participant within
a "window period" beginning on the third business day following the date of
release of the Company's quarterly and annual earnings statements and ending on
the twelfth business day following such date. Whether the Committee accepts such
application or determines to make payment, in whole or part, is within its
absolute and sole discretion, it being expressly understood that the Committee
is under no obligation to any Participant whatsoever to make such payments. In
the event that the Committee accepts such application and the Company determines
to make payment, such payment shall be in lieu of the exercise of the underlying
Option and such Option shall cease to be exercisable.
9
<PAGE> 11
11. MAXIMUM LIMITATION ON OPTIONS
Notwithstanding anything contained herein to the contrary, the maximum
number of shares of Common Stock for which Options may be granted to any
Participant during any Plan Year shall not exceed 100,000 shares of Common
Stock.
12. RIGHTS OF A STOCKHOLDER: NONTRANSFERABILITY.
No Participant shall have any rights as a stockholder with respect to any
shares covered by a Non-statutory and/or Incentive Stock Option until the date
of issuance of a stock certificate for such shares. Nothing in this Plan or in
any Award granted confers on any person any right to continue in the employment
of the Company or its Affiliates or to continue to perform services for the
Company or its Affiliates or interferes in any way with the right of the Company
or its Affiliates to terminate a Participant's services as an officer or other
employee at any time.
No Award under the Plan shall be transferable by the optionee other than
by will or the laws of descent and distribution and may only be exercised during
his lifetime by the optionee, or by a guardian or legal representative.
13. AGREEMENT WITH GRANTEES.
Each Award of Options, and/or Limited Rights will be evidenced by a
written agreement, executed by the Participant and the Company or its Affiliates
which describes the conditions for receiving the Awards including the date of
Award, the exercise price, if any, applicable periods, and any other terms and
conditions as may be required by the Board of Directors or applicable securities
law.
14. DESIGNATION OF BENEFICIARY.
A Participant may, with the consent of the Committee, designate a person
or persons to receive, in the event of death, any Option or Limited Rights Award
to which the Participant would then be entitled. Such designation will be made
upon forms supplied by and delivered to the Company and may be revoked in
writing. If a Participant fails effectively to designate a Beneficiary.
then the Participant's estate will be deemed to be the Beneficiary.
15. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding shares of Common Stock of
the Company by reason of any stock dividend or split, recapitalization, merger,
consolidation, spin-off, reorganization, combination or exchange of shares, or
other similar corporate change, or other increase or decrease in such shares
without receipt or payment of consideration by the Company, the Committee will
make such adjustments to previously granted Awards, to prevent dilution or
enlargement of the rights of the Participant, including any or all of the
following:
10
<PAGE> 12
(a) adjustments in the aggregate number or kind of shares of Common
Stock which may be Awarded under the Plan;
(b) adjustments in the aggregate number or kind of shares of Common
Stock covered by Awards already made under the Plan; or
(c) adjustments in the exercise price of outstanding Incentive
and/or Non- statutory Stock Options, or any Limited Rights attached to
such Options.
No such adjustments may, however, materially change the value of
benefits available to a Participant under a previously granted Award.
16. WITHHOLDING.
There may be deducted from each distribution of cash and/or Common Stock
under the Plan the amount of tax required by any governmental authority to be
withheld.
17. AMENDMENT OF THE PLAN.
The Board of Directors may amend, revise or terminate the Plan in whole or
in part at any time; PROVIDED, HOWEVER, that, to the extent required to comply
with Section 162(m) of the Code, no such amendment or revision shall be
effective if it amends a material term of the Plan unless approved by the
holders of a majority of the voting shares of the Company. No such termination,
modification or amendment may affect the rights of a Participant under an
outstanding Award.
18. EFFECTIVE DATE OF PLAN.
The Plan became effective upon the consummation of the Conversion of the
Bank on June 29, 1993 (the "Effective Date") and was approved by the
stockholders of the Company on December 13, 1993. The Plan was amended and
restated as of January 23, 1997 as provided herein, and as so amended and
restated, is effective as of January 23, 1997. Following such date, the Plan, as
amended and restated, will be presented to the stockholders of the Company at
its next annual meeting of stockholders for approval for purposes of: (i)
satisfying one of the requirements of Section 422 of the Code governing the tax
treatment for Incentive Stock Options; (ii) satisfying one of the requirements
of Section 162(m) of the Code governing the tax deductibility of certain amounts
upon the exercise of certain Non-statutory Stock Options and Limited Rights; and
(iii) maintaining listing on the Nasdaq Stock Market. The failure to obtain
stockholder approval of the Plan, as amended and restated, will not affect the
validity of the Plan prior to its amendment and restatement, or any Options
granted thereunder, and in such event, the Plan as in effect prior to such
amendment and restatement, and any Options granted thereunder, shall continue in
full force and effect.
11
<PAGE> 13
19. TERMINATION OF THE PLAN.
The right to grant Awards under the Plan will terminate upon the earlier
of 10 years after the Effective Date of the Plan or the issuance of Common Stock
or the exercise of Options or related Limited Rights equivalent to the maximum
number of shares reserved under the Plan as set forth in Section 5. The Board of
Directors has the right to suspend or terminate the Plan at any time, provided
that no such action will, without the consent of a Participant, adversely affect
such Participant's rights under a previously granted Award.
20. APPLICABLE LAW.
The Plan will be administered in accordance with the laws of the State of
Delaware.
21. HEADINGS.
The headings of sections are included solely for convenience of reference.
If there is any conflict between such headings and the text of the Plan, the
text shall control.
12
<PAGE> 1
Exhibit 10.4 1993 Stock Option Plan for Outside Directors
<PAGE> 2
T R FINANCIAL CORP.
1993 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 23, 1997
I. PURPOSE
The purpose of the T R Financial Corp. 1993 Stock Option Plan for
Outside Directors, as amended and restated as of January 23, 1997 (the
"Directors' Option Plan"), is to promote the growth and profitability of T R
Financial Corp. (the "Company") and Roosevelt Savings Bank (the "Bank") by
providing the outside directors of the Company and its Affiliates, including the
outside directors of the Bank (for purposes of this Directors' Option Plan, the
term "Outside Director" shall mean a member of the Board of Directors of the
Company or any of its Affiliates (the "Board") not also serving as an employee
of the Company or any of its Affiliates; provided, however, that such term shall
include any members of the Board who have previously served as an employee of
the Company or any of its Affiliates and who cease to be so employed but
continue on the Board) with an incentive to achieve long-term objectives of the
Company and to attract and retain Outside Directors of outstanding competence by
providing such Outside Directors with an opportunity to acquire an equity
interest in the Company. For purposes of this Section I, the term "Affiliate"
shall mean (i) a member of a controlled group of corporations, as defined in
Section 1563(a) of the Internal Revenue Code of 1986, as amended, determined
without regard to Sections 1563(a)(4) and (e)(3)(C), of which the Company is a
member or (ii) an unincorporated trade or business which is under common control
with the Company as determined in accordance with Section 414(c) of the Code and
the regulations issued thereunder.
II. GRANT OF OPTIONS
(a) Initial Grant. Each Outside Director who is serving in such
capacity on the date of the conversion of the Bank from mutual to stock form and
the acquisition of the Bank by the Company (the "Conversion") and the Company's
initial public offering, and who was not a consulting trustee or a consultant of
the Bank immediately prior to the consummation of the Conversion, shall be
granted non-statutory stock options (the "Non-statutory Stock Options" or the
"Options") to purchase shares of the common stock of the Company (the "Common
Stock") as follows:
<TABLE>
<CAPTION>
YEARS OF SERVICE NUMBER OF OPTIONS
- ---------------- -----------------
<S> <C>
Less than 5.......................................... 20,485
5 to 10.............................................. 25,947
More than 10......................................... 34,140
</TABLE>
In addition, each Outside Director of the Company who is serving in
such capacity on the date of the Company's initial public offering and at the
Effective Date and who was a consulting trustee or consultant of the Bank
immediately prior to the consummation of the Conversion of the Bank shall be
granted Non-statutory Stock Options to purchase 28,677 shares of Common Stock.
The Options granted herein are subject to adjustment as provided in Section IV
hereof. The purchase price per share of the Common Stock deliverable upon the
exercise of each Non-statutory Stock Option shall be the initial public offering
price of the Common Stock sold in connection with the Conversion of the Bank.
The effective date of these initial grants shall be the Effective Date of the
Directors' Option Plan.
<PAGE> 3
(b) GRANTS TO SUBSEQUENT OUTSIDE DIRECTORS. To the extent Options are
available for grant under the Directors' Option Plan, each Outside Director
("Subsequent Outside Director") who is first elected as a director subsequent to
June 29, 1993, the effective date of the Directors' Option Plan ("Effective
Date"), but prior to January 1, 1997, is hereby granted, as of the date on which
such Subsequent Outside Director is qualified and first begins to serve as an
Outside Director, Non-statutory Stock Options to purchase 20,485 shares of
Common Stock, subject to adjustment pursuant to Section IV, or to purchase such
lesser number of shares of Common Stock as remain in this Directors' Option
Plan. The purchase price per share of the Common Stock deliverable upon exercise
of such Options shall equal the Fair Market Value of the Common Stock on the
date the grant of such Options is effective, as determined under paragraph (d)
of this Section II.
If Options for sufficient shares are not available under the Directors'
Option Plan to fulfill the grant of Options under Section II(b) hereof to any
Subsequent Outside Director first elected subsequent to the Effective Date and
prior to January 1, 1997, and thereafter Options become available, such
Subsequent Outside Director shall then receive Options to purchase an amount of
shares of Common Stock, determined by dividing pro rata among each Subsequent
Outside Director, Options for the number of shares then available under the
Outside Directors' Plan, not to exceed 20,485 shares of Common Stock, subject to
adjustment as to any one Subsequent Outside Director. The date of grant shall be
the date Options for such shares become available. The purchase price per share
of the Common Stock deliverable upon exercise of such Options shall equal the
Fair Market Value of the Common Stock on the date such Options are granted, as
determined under paragraph (d) of this Section II.
If, pursuant to this paragraph (b), a Subsequent Outside Director
receives Options to purchase fewer than 20,485 shares of Common Stock, subject
to adjustment pursuant to Section IV hereof, and Options for additional shares
subsequently become available under the Directors' Option Plan, Options to
purchase such shares of Common Stock shall first be allocated as of the date of
availability, to any Subsequent Outside Director who has not previously been
granted an Option. Such Options shall be granted to purchase a number of shares
of Common Stock no greater than the number of shares covered by Options granted
to other Subsequent Outside Directors first elected subsequent to the Effective
Date, but who have received Options to purchase fewer than 20,485 shares of
Common Stock (subject to adjustment pursuant to Section IV). Thereafter, Options
for any remaining shares shall then be granted pro rata among all Subsequent
Outside Directors granted Options to purchase fewer than 20,485 shares of Common
Stock. No Outside Director first elected subsequent to the Effective Date shall
receive an Option to purchase more than 20,485 shares (subject to adjustment) of
Common Stock.
Notwithstanding the foregoing, effective as of January 1, 1997, no
Options shall be granted to Subsequent Outside Directors pursuant to this
Section II(b).
(c) ANNUAL GRANTS TO OUTSIDE DIRECTORS. Effective as of April 22, 1997
for 1997, and as of the day following each annual meeting of stockholders of the
Company after 1997 ("Annual Grant Date"), to the extent that Options are
available for grant under the Directors' Option Plan, each Outside Director on
such Annual Grant Date shall be granted Non-statutory Stock Options to purchase
1,200 shares of Common Stock, subject to adjustment pursuant to Section IV, or
to purchase such lesser number of shares of Common Stock as remain in this
Directors' Option Plan. If Options for sufficient shares are not available under
the Directors' Option Plan to grant each Outside Director an Option to purchase
1,200 shares of Common Stock, then the shares available shall be divided pro
rata among each Outside Director. The purchase price per share of the Common
Stock deliverable upon exercise of such Options shall equal the Fair Market
Value of the Common Stock on the date the Options are granted, as determined in
paragraph (d) of this Section II.
2
<PAGE> 4
Notwithstanding the foregoing, any former Outside Director who retires
from the Board prior to the Annual Grant Date in a particular year shall, if
such retiring Outside Director has five or more full years of service on the
Board, receive Non-statutory Stock Options to purchase 1,200 shares of Common
Stock, subject to any adjustments pursuant to Section IV, in the year in which
such Outside Director retires; PROVIDED, HOWEVER, that such Outside Director was
an Outside Director on December 31st of the year prior to the Annual Grant Date.
For purposes of this Section II(c), "service on the Board" shall include service
on the Board while an employee of the Company or any of its Affiliates and
service as a trustee of the Bank prior to the conversion of the Bank to stock
form on June 29, 1993.
If Options for sufficient shares are not available under the Directors'
Option Plan to fulfill the grant under this Section II(c) to any Outside
Director, and thereafter Options become available, such Outside Director shall
then receive Options to purchase an amount of shares of Common Stock, which
amount shall be determined by dividing pro rata among each Outside Director
Options for the number of shares then available under the Outside Directors'
Plan; PROVIDED, HOWEVER, that no Outside Director shall receive Options to
purchase more than 1,200 shares of Common Stock in any calendar year after 1996.
The date of grant shall be the date the Options for such shares become
available. The purchase price per share of the Common Stock deliverable upon
exercise of such Options shall equal the Fair Market Value of the Common Stock
on the date the Options are granted, as determined under paragraph (d) of this
Section II.
(d) FAIR MARKET VALUE. For purposes of the Directors' Option Plan, when
used in connection with Common Stock on a specified date, Fair Market Value
means:
(i) the final reported sales price on the date in question (or
if there is no reported sale on such date, on the last preceding date
on which any reported sale occurred) as reported in the principal
consolidated reporting system with respect to securities listed or
admitted to trading on the principal United States securities exchange
on which the shares of Common Stock are listed or admitted to trading;
or
(ii) if the shares of Common Stock are not listed or admitted
to trading on any such exchange, the closing bid quotation with respect
to a share of Common Stock on such date on the Nasdaq Stock Market, or,
if no such quotation is provided, on another similar system, selected
by the committee established to administer the Directors' Option Plan
("Committee"), then in use; or
(iii) if sections II(d)(i) and (ii) are not applicable, the
fair market value of a share of Common Stock as the Committee may
determine. For purposes of the grant of Options in the Conversion, Fair
Market Value shall mean the initial public offering price of the Common
Stock.
III. TERMS AND CONDITIONS
(a) VESTING OF OPTIONS.
(i) All Options granted pursuant to Sections II(a) and (b)
shall vest and become exercisable one year after the date of grant,
which in the case of Outside Directors serving on the Board at the time
of the Conversion of the Bank shall be the Effective Date; PROVIDED,
HOWEVER, that in the event of death, Disability, Retirement, or a
Change in Control of the Company or Bank (all as defined in Section
III(f) below), all Options shall vest immediately, subject to Section
III(f) below.
3
<PAGE> 5
(ii) All Options granted pursuant to Section II(c) shall vest
and become exercisable at a rate of one-third of the aggregate number
of Options granted at the end of each consecutive twelve-month period
after the date of grant of such Options; PROVIDED, HOWEVER, that in the
event of death, Disability, Retirement or a Change in Control of the
Company or Bank (all as defined in Section III(f) below), all Options
shall vest immediately, subject to Section III(f) below.
(iii) Notwithstanding any other provision in this Plan, with
respect to Options granted pursuant to Sections II(a) and (b), if the
Outside Director's service on the Board is terminated prior to the date
the Plan is presented to the stockholders of the Company for
ratification, such Options may not be exercised prior to the date of
the stockholders' meeting regarding such ratification, but shall remain
exercisable for a period of one year from the date of such meeting.
(iv) If the Outside Director dies before fully exercising any
portion of an Option then exercisable, such Option may be exercised by
such Outside Director's designated beneficiary, or in the event that
such Outside Director has not designated a beneficiary, such Outside
Director's personal representative(s), heir(s) or devisee(s) at any
time within the one year period following his or her death; PROVIDED,
HOWEVER, that in no event shall the Option be exercisable more than 120
months after the date of its grant.
(v) If the Outside Director is removed upon an intentional
failure to perform stated duties, a breach of a fiduciary duty
involving personal dishonesty which results in material loss to the
Company or one of its Affiliates, a willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or a
final cease-and-desist order which results in material loss to the
Company or one of its Affiliates ("Removal for Cause"), all Options
awarded to such Outside Director shall expire upon such Removal for
Cause.
(b) OPTION AGREEMENT. Each Option shall be evidenced by a written
Option agreement between the Company and the Outside Director specifying the
number of shares of Common Stock that may be acquired through its exercise and
containing such other terms and conditions which are not inconsistent with the
terms of this grant.
(c) TERMINATION OF OPTION. Subject to the provisions of Section III(f),
each Option shall expire upon the earlier of (i) 120 months following the date
of grant, or (ii) one year following the date on which the Outside Director
ceases to serve in such capacity for any reason other than Removal for Cause.
(d) MANNER OF EXERCISE. The Option may be exercised from time to time,
in whole or in part, by delivering a written notice of exercise to one of the
Human Resources officers of the Bank. Such notice is irrevocable and must be
accompanied by full payment of the exercise price (as determined in Section
II(d) hereof) in cash or shares of previously acquired Common Stock of the
Company at the Fair Market Value of such shares determined on the exercise date
by the manner described in Section II(d) above or by such other means as
determined by the Board. Options granted under this Plan may be exercised
pursuant to a "cashless exercise" of an Option in accordance with applicable
securities laws. If previously acquired shares of Common Stock are tendered in
payment of all or part of the exercise price, the value of such shares shall be
determined as of the date of such exercise.
(e) TRANSFERABILITY. Each Option granted hereby may be exercised
only by the Outside Director to whom it is issued or, in the event of the
Outside Director's death, his or her designated beneficiary(ies), personal
representative(s), designee(s), heir(s) or devisee(s) pursuant to the terms of
Section III(d) hereof.
4
<PAGE> 6
(f) TERMINATION OF SERVICE. Upon the termination of a recipient's
service on the Board for any reason other than death, Disability, Retirement,
Change in Control or Removal for Cause, the participant's Options shall be
exercisable only as to those shares which were immediately purchasable by the
recipient at the date of termination.
(g) DESIGNATION OF BENEFICIARY. An Outside Director may designate a
person or persons to receive, in the event of death, any Option to which the
Outside Director would then be entitled. Such designation will be made upon
forms supplied by and delivered to the Company and may be revoked in writing. If
an Outside Director fails effectively to designate a beneficiary, then such
Outside Director's estate will be deemed to be the beneficiary.
In the event of death or Disability of any recipient, all Options held
by such recipient, whether or not exercisable at such time, shall become
immediately exercisable by the recipient or the recipient's beneficiary(ies) or
legal representatives. Upon termination of the recipient's service due to
Retirement or a Change in Control, all Options held by such recipient, whether
or not exercisable at such time, shall also become immediately exercisable. For
purposes of this Directors' Option Plan, the following terms are defined:
(i) "Change in Control" means an event of a nature that: (i)
would be required to be reported in response to Item 1(a) of the
current report on Form 8-K, as in effect on the date hereof, pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (ii) results in a Change in Control of
the Bank or the Company within the meaning of the Change in Bank
Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation (the "FDIC") at 12 C.F.R. ss. 303.4(a)
with respect to the Bank and the Board of Governors of the Federal
Reserve System ("FRB") at 12 C.F.R. ss. 225.41(b) with respect to the
Company, as in effect on the date hereof, but excluding any such Change
in Control resulting from the purchase of securities by the Company's
or the Bank's tax-qualified employee benefit plans and trusts; (iii)
results in a transaction requiring prior FRB approval under the Bank
Holding Company Act of 1956, as amended, and the regulations
promulgated thereunder by the FRB at 12 C.F.R. ss. 225.11, as in effect
on the date hereof, except for the Company's acquisition of the Bank
and any transaction resulting from the purchase of securities by the
Company's or the Bank's tax-qualified employee benefit plans and
trusts; or (iv) without limitation, such a Change in Control shall be
deemed to have occurred at such time as (a) any "person" (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Bank or the Company
representing 20% or more of the Bank's or the Company's outstanding
securities except for any securities of the Bank purchased by the
Company in connection with the initial conversion of the Bank from
mutual to stock form (the "Conversion") and any securities purchased by
the Company's or the Bank's tax-qualified employee benefit plans and
trusts; or (b) individuals who constitute the Board on the date hereof
(the "Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising the Incumbent
Board, or whose nomination for election by the Company's stockholders
was approved by the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause (b), considered
as though he were a member of the Incumbent Board,
5
<PAGE> 7
but excluding, for this purpose, any such person whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a person other than the Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all
the assets of the Bank or the Company or similar transaction occurs in
which the Bank or Company is not the resulting entity; or (d) a proxy
statement shall be distributed soliciting proxies from stockholders of
the Company, by someone other than the current management of the
Company, seeking stockholder approval of a plan of reorganization,
merger or consolidation of the Company or Bank or similar transaction
with one or more corporations as a result of which the outstanding
shares of the class of securities then subject to such plan or
transaction are exchanged for or converted into cash or property or
securities not issued by the Bank or the Company; or (e) a tender offer
is made for 20% or more of the voting securities of the Bank or Company
then outstanding.
(ii) "Disability" means a condition of total incapacity,
mental or physical, preventing further performance of service as an
Outside Director, which the Board shall have determined, on the basis
of competent medical evidence, is likely to be permanent.
(iii) "Retirement" means the termination of service on the
Board after attainment of age 75 or following at least five full years
of service as a director, in either case following written notice to
the Board or the Secretary of the Company of such Outside Director's
intention to retire. For purposes of this Section III(f)(iii), "service
as a director" shall include service on the Board while an employee of
the Company or any of its Affiliates and service as a trustee of the
Bank prior to the conversion of the Bank to stock form on June 29,
1993.
IV. COMMON STOCK SUBJECT TO THE DIRECTORS' OPTION PLAN
The shares which shall be issued and delivered upon exercise of Options
granted under the Directors' Option Plan may be either authorized and unissued
shares of Common Stock or authorized and issued shares of Common Stock held by
the Company as treasury stock. The number of shares of Common Stock reserved for
issuance under the Directors' Option Plan shall not exceed 404,224 shares of
Common Stock of the Company, par value $.01 per share, subject to adjustments
pursuant to this Section IV. Any shares of Common Stock subject to an Option
which for any reason either terminates unexercised or expires, shall again be
available for issuance under the Directors' Option Plan.
In the event of any change or changes in the outstanding Common Stock
of the Company by reason of any stock dividend or split, recapitalization,
reorganization, merger, consolidation, spin-off, combination or any similar
corporate change, or other increase or decrease in such shares effected without
receipt or payment of consideration by the Company, the number of shares of
Common Stock which may be issued under this Directors' Option Plan, the number
of shares of Common Stock subject to Options granted under this Directors'
Option Plan and the Option price of such Options, shall be automatically
adjusted to prevent dilution or enlargement of the rights granted to an Outside
Director under the Directors' Option Plan.
V. EFFECTIVE DATE OF THE PLAN; STOCKHOLDER RATIFICATION
The Directors' Option Plan became effective upon the Conversion of the
Bank on June 29, 1993 and was approved by the stockholders of the Company on
December 13, 1993. The Plan was amended and restated as of January 23, 1997 as
provided herein, and as so amended and restated, is effective as of January 23,
1997.
6
<PAGE> 8
VI. TERMINATION OF THE PLAN
The right to grant Options under the Directors' Option Plan will
terminate upon the earlier of ten years after the Effective Date of the Plan or
the issuance of an amount of stock equal to 404,224 shares of Common Stock (the
maximum number of shares of Common Stock reserved under this Plan). A majority
of the outstanding shares of the Common Stock entitled to vote is required to
terminate the Directors' Option Plan; provided, however, no such termination
shall, without the consent of the affected individual, affect such individual's
rights under a previously granted Option.
VII. AMENDMENT OF THE PLAN
The Board may amend, revise or terminate the Plan in whole or in part
at any time. No such modification, amendment or termination may affect the
rights of an Outside Director under an outstanding Option without the written
consent of such Outside Director.
VIII. HEADINGS.
The headings of sections are included solely for convenience of
reference. If there is any conflict between such headings and the text of the
Directors' Option Plan, the text shall control.
IX. APPLICABLE LAW
The Plan will be administered in accordance with the laws of the State
of Delaware.
7
<PAGE> 1
Exhibit 23.2 Consent of KPMG LLP
<PAGE> 2
ACCOUNTANT'S CONSENT
--------------------
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Roslyn Bancorp, Inc. of our report dated January 28, 1998, relating to
the consolidated statements of financial condition of Roslyn Bancorp, Inc. and
subsidiary as of December 31, 1997 and 1996, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1997, which report is
incorporated by reference to the 1997 Annual Report on form 10-K/A No. 1 filed
by Roslyn Bancorp, Inc. with the Securities and Exchange Commission.
/s/ KPMG LLP
- ------------
KPMG LLP
February 16, 1999
Melville, New York
