As filed with the Securities and Exchange Commission on January 13, 2000
Registration No. 333-[_____]
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
___________________
REGISTRATION STATEMENT
ON FORM S-8
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 incorporation (I.R.S. Employer
or organization) Identification No.)
One Hudson City Centre, Hudson, New York 12534
(Address of principal executive offices) (Zip Code)
HUDSON RIVER BANCORP, INC.
1998 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Robert L. Freedman, P.C.
Beth A. Freedman, P.C.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
Suite 700 East
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share offering price registration fee
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<S> <C> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,785,375 shares $ (2) $19,661,443(2) $5,191(2)
=================================================================================================================
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the Plan, may become subject to the Plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of
calculating the registration fee. Of the 1,785,375 shares being
registered hereby (i) 1,249,763 shares are subject to options with an
exercise price of $11.50 per share ($14,372,274.50 in the aggregate)
and (ii) the remaining shares which have not been awarded to date, at
$9.875 per share, which was the average of the closing bid and asked
prices of the common stock of Hudson River Bancorp, Inc. on
January 6, 2000, as reported on the Nasdaq National Market.
<PAGE>
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 River Bancorp, Inc. 1998
Stock Option and Incentive 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.
I-2
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
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The following documents previously or concurrently filed by Hudson
River Bancorp, Inc. (the "Company") with the Commission are hereby incorporated
by reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1999, as amended (File No. 000-24187), filed
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) all other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
audited financial statements contained in the prospectus
referred to in Item 3(a);
(c) the description of the common stock, par value $.01 per share,
of the Registrant contained in the Registrant's Registration
Statement on Form S-1 (Registration No. 333-47605) filed with
the Commission on March 9, 1998, and all amendments thereto 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, 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 to be a part 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 the
Secretary, Hudson River Bancorp, Inc., One Hudson City Centre, Hudson, New York
12534, telephone number (518) 828-4600.
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.
II-1
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Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Certificate of Incorporation of the Company provides that a
director or officer of the Company shall be indemnified by the Company to the
fullest extent authorized by the Delaware General Corporation Law against all
expenses, liability and loss reasonably incurred or suffered by such person in
connection with his activities as a director or officer or as a director or
officer of another company, if the director or officer held such position at the
request of the Company. Delaware law requires that such director, officer,
employee or agent, in order to be indemnified, must have acted in good faith and
in a manner reasonably believed to be not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, either had
reasonable cause to believe such conduct was lawful or did not have reasonable
cause to believe his conduct was unlawful.
The Certificate of Incorporation and Delaware law also provide that the
indemnification provisions of such Certificate and the statute are not exclusive
of any other right which a person seeking indemnification may have or later
acquire under any statute, provision of the Certificate of Incorporation, Bylaws
of the Company, agreement, vote of stockholders or disinterested directors or
otherwise.
These provisions may have the effect of deterring shareholder
derivative actions, since the Company may ultimately be responsible for expenses
for both parties to the action. A similar effect would not be expected for
third-party claims.
In addition, the Certificate of Incorporation and Delaware law also
provide that the Company may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company has the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law. The Company intends to obtain such insurance.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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See Exhibit Index.
II-2
<PAGE>
Item 9. Undertakings.
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(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, 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, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act filing of
the employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing a Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned in the City of Hudson,
State of New York on January 12, 2000.
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 and Timothy E. Blow or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, 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 attorneys-in-fact and
agents 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 all said
attorneys-in-fact and agents or their substitutes or substitute 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/ Carl A. Florio /s/ Earl Schram, Jr.
- ----------------------------------- ---------------------------
Carl A. Florio Earl Schram, Jr.
President and Chief Executive Chairman of the Board
Officer (Principal Executive Officer)
Date: January 12, 2000 Date: January 12, 2000
<PAGE>
/s/ Stanley Bardwell /s/ Joseph W. Phelan
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Stanley Bardwell, M.D. Joseph W. Phelan
Director Director
Date: January 12, 2000 Date: January 12, 2000
/s/ William E. Collins /s/ William H. Jones
- ----------------------------------- ---------------------------
William E. Collins William H. Jones
Director Director
Date: January 12, 2000 Date: January 12, 2000
/s/ Marcia M. Race
- ----------------------------------- ---------------------------
Joseph H. Giaquinto Marcia M. Race
Director Director
Date: January 12, 2000 Date: January 12, 2000
/s/ Marilyn A. Herrington /s/ Timothy E. Blow
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Marilyn A. Herrington Timothy E. Blow
Director Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: January 12, 2000 Date: January 12, 2000
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EXHIBIT INDEX
Reference to Prior Filing
or Page Number in
Sequentially
Exhibit Numbered Registration
Number Statement
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<S> <C> <C>
4 Instruments Defining the Rights of Security Holders,
Including Indentures:
Certificate of Incorporation of Hudson River *
Bancorp, Inc.
Bylaws of Hudson River Bancorp, Inc. *
Form of Stock Certificate of Hudson River *
Bancorp, Inc.
5 Opinion of Silver, Freedman & Taff, L.L.P. Exhibit 5
23.1 Consent of KPMG LLP Exhibit 23.1
23.2 Consent of Silver, Freedman & Taff, L.L.P. Exhibit 23.2
24 Power of Attorney Contained on signature page.
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* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-47605) filed on March 9, 1998 and all amendments thereto or
reports filed for the purpose of updating such description. All such previously
filed documents are hereby incorporated herein by reference in accordance with
Item 601 of Regulation S-K.
EXHIBIT 5
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January 12, 2000
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 1,785,375 shares of the
Corporation's Common Stock, par value $0.01 per share (the "Common Stock"), to
be offered pursuant to Hudson River Bancorp, Inc. 1998 Stock Option and
Incentive Plan (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 deem
appropriate for the purpose of rendering this opinion.
Based upon the foregoing, it is our opinion that the Common Stock covered by
the Registration Statement will be, when and if issued, sold and paid for as
contemplated by the plan, legally issued and non-assessable shares of Common
Stock of the Corporation.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
EXHIBIT 23.1
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Hudson River Bancorp, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Hudson River Bancorp, Inc. relating to the Hudson River Bancorp, Inc.
1998 Stock Option and Incentive Plan, of our report dated May 14, 1999, relating
to the consolidated balance sheets of Hudson River Bancorp, Inc. and subsidiary
as of March 31, 1999 and 1998, and the related consolidated income statements,
statements of changes in shareholders' equity, and cash flows for each of the
years in the three-year period ended March 31, 1999, which report appears in the
March 31, 1999 Annual Report on Form 10-K of Hudson River Bancorp, Inc.
/s/ KPMG LLP
Albany, New York
January 7, 2000
EXHIBIT 23.2
<PAGE>
January 12, 2000
Board of Directors
Hudson River Bancorp, Inc.
One Hudson City Centre
Hudson, New York, 12534
Gentlemen:
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement on Form S-8. 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
