As filed with the Securities and Exchange Commission on July 7, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HUDSON RIVER BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 14-1803212
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Hudson City Centre, Hudson, New York 12534
(Address of principal executive offices) (Zip Code)
THE HUDSON CITY SAVINGS INSTITUTION
401(k) SAVINGS PLAN
(Full title of the plan)
Robert L. Freedman, P.C.
Beth A. Freedman
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
1100 New York Ave., N.W.
Washington, D.C. 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered per share price fee
Common Stock, 261,200 shares(1) $12.53(2) $3,272,836(2) $966(2)
$.01 par value
Interests in Plan(3) N/A(3) N/A N/A N/A(3)
(1) Estimated maximum aggregate number of shares of Hudson River Bancorp, Inc.
(the "Company") common stock purchasable with employee and employer
contributions under the Plan during the next 36 months.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $12.53 per share, which was the average
of the closing bid and ask prices of the Company common stock on July 1,
1998.
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
In accordance with Rule 457(h)(2) no separate fee calculation is made for
plan interests.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in The Hudson City Savings Institution
401(k) Savings Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Hudson River
Bancorp, Inc. (the "Company") with the Commission are hereby incorporated by
reference into this Registration Statement and the prospectus to which this
Registration Statement relates (the "Prospectus"), which Prospectus has been or
will be delivered to the participants in the Plan covered by this Registration
Statement:
(a) The prospectus contained in the Company's Registration Statement on Form
S-1 filed on March 9, 1998 (Registration No. 333-47605), as amended by
Pre-Effective Amendment No. 1 to Form S-1 filed on May 1, 1998;
(b) all reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act through the date hereof; and
(c) the description of the common stock, par value $.01 per share, of the
Company contained in the Company's Registration Statement on Form 8-A (File
No. 000-24187) filed with the Commission on May 4, 1998 and all amendments
or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and the Prospectus and to be a part hereof and
thereof from the date of the filing of such documents. Any statement contained
in the documents incorporated, or deemed to be incorporated, by reference herein
or therein shall be deemed to be modified or superseded for purposes of this
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
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 and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Timothy
Blow, Chief Financial Officer, One Hudson City Centre, Hudson, New York 12534,
telephone number (518) 828-4600.
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All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Company's Certificate of Incorporation provides for
indemnification of directors and officers of the Registrant against any and all
liabilities, judgments, fines and reasonable settlements, costs, expenses and
attorneys' fees incurred in any actual, threatened or potential proceeding,
except to the extent that such indemnification is limited by Delaware law and
such law cannot be varied by contract or bylaw. Article ELEVENTH also provides
for the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith, (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate, (iii) with
respect to a criminal proceeding, had no reasonable cause to believe his conduct
was unlawful, and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the proceeding was brought
determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by the corporation's board of directors by a majority vote of a quorum
consisting of directors not at the time parties to such proceeding;
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or (ii) if such a quorum cannot be obtained or the quorum so directs, then by
independent legal counsel in a written opinion; or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Under a directors' and officers' liability insurance policy, directors and
officers of the Company are insured against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference to Prior
Regulation S-K Filing or Exhibit
Exhibit Number
Number Document Attached Hereto
4 Instruments defining the rights of security holders,
including debentures:
Certificate of Incorporation of Hudson River Bancorp, Inc. *
Bylaws of Hudson River Bancorp, Inc. **
5 Opinion of Silver, Freedman & Taff, L.L.P. 5
23 Consents of Experts and Counsel:
Consent of Silver, Freedman & Taff, L.L.P. Contained in
Exhibit 5
Consent of KPMG Peat Marwick LLP 23.2
24 Power of Attorney Contained on
Signature Page
* Incorporated hereby by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (Registration No. 333-47605).
** Incorporated hereby by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-47605).
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The Registrant hereby undertakes that it will submit or has submitted the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) 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 of expenses incurred or paid by a
director, officer or controlling person 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Hudson, State of New York on July 6, 1998.
HUDSON RIVER BANCORP, INC.
By: /s/ Carl A. Florio
Carl A. Florio,
President and Chief Executive
Officer (Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Carl A. Florio, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution,
for him in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing 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 said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ Earl Schram, Jr.
Earl Schram, Jr., Chairman of the Board
Date: July 6, 1998
/s/ Carl A. Florio
Carl A. Florio, President, Chief Executive
Officer and Director (Principal Executive and
Operating Officer)
Date: July 6, 1998
/s/Stanley Bardwell
Stanley Bardwell, Director
Date: July 6, 1998
/s/William E. Collins
William E. Collins, Director
Date: July 6, 1998
/s/John E. Kelly
John E. Kelly, Director
Date: July 6, 1998
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/s/Timothy Blow
Timothy Blow, Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: July 6, 1998
/s/Joseph W. Phelan
Joseph W. Phelan, Director
Date: July 6, 1998
/s/William H. Jones
William H. Jones, Director
Date: July 6, 1998
/s/Marilyn A. Herrington
Marilyn A. Herrington, Director
Date: July 6, 1998
/s/Marcia M. Race
Marcia M. Race, Director
Date: July 6, 1998
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Hudson, State of New York, on July 6,
1998.
The Hudson City Savings Institution
401(k) Savings Plan
/s/ Carl A. Florio
Member, Administrative Committee
Date: July 6, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
HUDSON RIVER BANCORP, INC.
<PAGE>
EXHIBIT INDEX
Reference to Prior
Regulation S-K Filing or Exhibit
Exhibit Number
Number Document Attached Hereto
4 Instruments defining the rights of security holders,
including debentures:
Certificate of Incorporation of Hudson River Bancorp, Inc. *
Bylaws of Hudson River Bancorp, Inc. **
5 Opinion of Silver, Freedman & Taff, L.L.P. 5
23 Consents of Experts and Counsel:
Consent of Silver, Freedman & Taff, L.L.P. Contained
in
Exhibit 5
Consent of KPMG Peat Marwick 23.2
24 Power of Attorney Contained
on
Signature
Page
* Incorporated hereby by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1 (Registration No. 333-47605).
** Incorporated hereby by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-47605).
EXHIBIT 5
Opinion of Silver, Freedman & Taff, L.L.P.
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July 6, 1998
Board of Directors
Hudson River Bancorp, Inc.
One Hudson City Centre
Hudson, New York 12534
Members of the Board:
We have acted as counsel to Hudson River Bancorp, Inc. (the "Corporation")
in connection with the preparation and filing with the Securities and Exchange
Commission of a registration statement on Form S-8 under the Securities Act of
1933 (the "Registration Statement") relating to 261,200 shares of the
Corporation's Common Stock, par value $.01 per share (the "Common Stock"), to be
offered pursuant to The Hudson City Savings Institution 401(k) Savings Plan (the
"Plan") and related interests in the Plan.
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements thereto,
the Corporation's Certificate of Incorporation, Bylaws, resolutions of its Board
of Directors and such other documents and corporate records as we have deemed
appropriate for the purpose of rendering this opinion.
Based upon the foregoing, it is our opinion that the shares of Common Stock
and interests in the Plan covered by the Registration Statement will, when sold,
be legally issued, fully paid and non-assessable.
We hereby consent to the inclusion of our opinion in this Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
EXHIBIT 23.2
Consent of KPMG Peat Marwick LLP
<PAGE>
KPMG Peat Marwick LLP
515 Broadway
Albany, NY 12207
The Board of Directors
Hudson River Bancorp, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Hudson River Bancorp, Inc. related to The Hudson City Savings
Institution 401(k) Savings Plan of our report dated June 20, 1997, except for
note 17, which is as of November 20, 1997, relating to the consolidated balance
sheets of The Hudson City Savings Institution and subsidiaries as of March 31,
1997 and 1996, and the related consolidated income statements, changes in equity
and cash flows for each of the years in the three-year period ended March 31,
1997.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK, LLP
Albany, New York
July 1, 1998
