AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ___________________
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TROY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
16-1559508
(IRS employer identification number)
32 Second Street
Troy, New York 12180
(518) 270-3313
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
------------------------
Troy Financial Corporation Long-Term Equity Compensation Plan
(Full title of the Plan)
------------------------
Daniel J. Hogarty, Jr.
President and Chief Executive Officer
Troy Financial Corporation
32 Second Street Troy, New York 12180
(518) 270-3313
(Name, address and telephone number of Agent for Service)
Copy to:
Stuart G. Stein, Esq.
Catherine Schenker, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-8575
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------- ----------------- --------------------- -------------------- --------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(2) PER SHARE (1) PRICE (1)(2) FEE (1)(2)
- ------------------------------------------- ----------------- --------------------- -------------------- --------------
<S> <C> <C> <C> <C>
Common Stock 1,699,463 $10.8125 $18,375,444 $4,851.12
- ------------------------------------------- ----------------- --------------------- -------------------- --------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
(2) The Registrant is registering 1,699,463 shares of its common stock, par
value $.0001 per share, reserved for issuance pursuant to the Troy Financial
Corporation Long-Term Equity Compensation Plan.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the SEC either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this registration statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Troy Financial Corporation ("Troy Financial") hereby
incorporates by reference into this registration statement the following
documents filed by it with the SEC:
(a) Troy Financial's prospectus filed on Form 424B3 (File
No. 333-68813) filed with the SEC on February 24,
1999.
(b) Troy Financial's current reports on Form 10-Q for the
quarters ended March 31, 1999 and June 30, 1999.
(c) The description of Troy Financial common stock, par
value $.0001 per share ("Common Stock"), contained in
Troy Financial's registration statement on Form 8-A
(File No. 000-25439) filed with the SEC on February
24, 1999.
(d) Troy Financial's current report on Form 10-K for the
fiscal year ended September 30, 1999 (File No.
000-25439) filed with the SEC on December 30, 1999.
In addition, all documents and reports filed by Troy Financial
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference in this registration statement
and to be part hereof from the date of filing of such documents or reports. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document, which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to the provisions of the General Corporation
Law of the State of Delaware (the "DGCL") and Section 12 of Troy Financial's
Certificate of Incorporation.
Troy Financial is a Delaware corporation subject to the
applicable indemnification provisions of the DGCL. Section 145 of the DGCL
provides for the indemnification, under certain circumstances, of persons who
are or were directors, officers, employees or agents of a corporation, or are or
were serving at the request of a corporation in such a capacity with another
business organization or entity, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in actions, suits or
proceedings, whether civil, criminal, administrative, or investigative, brought
or threatened against or involving such persons because of such person's service
in any such capacity. In the case of actions brought by or in the right of a
corporation, Section 145 provides for indemnification of expenses (including
attorneys' fees) if the person seeking indemnification acted in good faith and
in a manner that such person reasonably believed to be in or not opposed to the
best interests of the corporation; provided, however, that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall been adjudged liable to the corporation unless, upon a determination by
the Court of Chancery or the court in which such action or suit was brought,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is reasonably and fairly entitled to indemnity for such
expenses.
Troy Financial's Certificate of Incorporation provides that,
to the extent permitted by law, Troy Financial shall fully 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) by reason of the fact that such person is or
was a director or officer of Troy Financial, or is or was serving at the request
of Troy Financial as a director or officer of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding. Moreover, to the extent permitted by law, Troy
Financial will fully 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) by reason
of the fact that such person is or was an employee or agent of Troy Financial,
or is or was serving at the request of Troy Financial as an employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding. Troy Financial will also
advance expenses upon receipt of an undertaking by or on behalf of the director
or officer to repay such amount if it shall ultimately be determined that such
director or officer is not entitled to indemnification. Section 8 of Troy
Financial's Bylaws provides for similar indemnification of such persons.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
2
<PAGE>
ITEM 8. EXHIBITS.
Exhibit
No. Exhibit
--- -------
4 Specimen common stock certificate of Troy Financial
(incorporated by reference to Exhibit 4.3 of Troy Financial's
registration statement on Form S-1 (File No. 333-68813) filed
with the SEC on December 11, 1998, as amended).
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5).
99.1 Section 145 of the Delaware General Corporation Law.
99.2 Troy Financial Corporation Long-Term Equity Compensation Plan
(incorporated by reference to Exhibit 10.1 of Troy Financial's
current report on Form 10-K (File No. 000-25439) filed with
the SEC on December 30, 1999).
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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
3
<PAGE>
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 (and, where applicable, each filing of an 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 liability 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 SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant or expenses incurred or
paid by a director, officer or controlling person in 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4
<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 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 Troy, state of New York on December 20, 1999.
TROY FINANCIAL CORPORATION
By: /s/ Daniel J. Hogarty
-------------------------------------
President and
Chief Executive Officer
Each person whose signature appears below appoints Daniel J. Hogarty,
Jr. or Kevin M. O'Bryan, jointly and severally, each in his own capacity, as
true and lawful attorneys-in-fact, with full power of substitution in such
person's name, place and stead, in any and all capacities to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or their 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 by the following persons in the
capacities indicated on the 20th day of December, 1999.
SIGNATURE TITLE
--------- -----
/s/ Daniel J. Hogarty President, Chief Executive Officer and
- --------------------------------------- Director (Principal Executive
Daniel J. Hogarty, Jr. Officer)
/s/ Edward M. Maziejka, Jr. Chief Financial Officer (Principal
- --------------------------------------- Financial Officer)
Edward M. Maziejka, Jr.
/s/ George H. Arakelian
- --------------------------------------- Director
George H. Arakelian
/s/ Richard B. Devane
- --------------------------------------- Director
Richard B. Devane
/s/ Michael E. Fleming
- --------------------------------------- Director
Michael E. Fleming
/s/ Willie A. Hammett
- --------------------------------------- Director
Willie A. Hammett
/s/ Thomas B. Healy
- --------------------------------------- Director
Thomas B. Healy
5
<PAGE>
/s/ Keith D. Millsop
- --------------------------------------- Director
Keith D. Millsop
/s/ Edward G. O'Haire
- --------------------------------------- Director
Edward G. O'Haire
/s/ Marvin L. Wulf
- --------------------------------------- Director
Marvin L. Wulf
6
<PAGE>
EXHIBIT INDEX
Exhibit
No. Exhibit
--- -------
4 Specimen common stock certificate of Troy Financial
(incorporated by reference to Exhibit 4.3 of Troy Financial's
registration statement on Form S-1 (File No. 333-68813) filed
with the SEC on December 11, 1998, as amended).
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P. (contained in Exhibit 5).
99.1 Section 145 of the Delaware General Corporation Law.
99.2 Troy Financial Corporation Long-Term Equity Compensation Plan
(incorporated by reference to Exhibit 10.1 of Troy Financial's
current report on Form 10-K (File No. 000-25439) filed with
the SEC on December 30, 1999).
7
EXHIBIT 5
LEGAL OPINION OF HOGAN & HARTSON L.L.P.
December 31, 1999
Board of Directors
Troy Financial Corporation
32 Second Street
Troy, New York 12180
Re: Troy Financial Corporation Long-Term Equity Compensation Plan
Registration Statement on Form S-8
Gentlemen:
We are acting as special counsel to Troy Financial
Corporation, a Delaware corporation (the "Company"), in connection with its
registration statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission relating to the proposed offering of up to
1,699,463 shares of the Company's common stock, par value $.0001 per share, all
of which shares (the "Shares") are to be sold by the Company under the Company's
Long-Term Equity Compensation Plan (the "Plan"). This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection
with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Certificate of Incorporation of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
3. The Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
4. The Plan.
5. Resolutions of the Board of Directors of the Company
adopted on July 29, 1999, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect, relating to
the issuance and sale of the Shares and arrangements
in connection therewith.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
<PAGE>
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of
the opinion that the Shares to be issued pursuant to the terms of the Plan have
been duly authorized and, upon payment therefore in accordance with the terms of
the Plan, will be validly issued, fully paid and non-assessable under the
General Corporation Law of the State of Delaware.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5 to the Registration Statement. In giving this opinion and consent, we
do not admit that we are an "expert" within the meaning of the Securities Act of
1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Troy Financial Corporation
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Troy Financial Corporation relating to the Troy Financial Corporation
Long-Term Equity Compensation Plan, of our report dated November 5, 1999,
relating to the consolidated statements of condition of Troy Financial
Corporation and subsidiary as of September 30, 1999 and 1998, and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the years in the three-year period ended September 30, 1999,
which report appears in the September 30, 1999 Annual Report on Form 10-K of
Troy Financial Corporation.
/s/ KPMG LLP
Albany, New York
December 31, 1999
EXHIBIT 99.1
145 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE. --
(a) A corporation shall have power 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 the 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, partnership,
joint venture, trust 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 interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power 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 or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the 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, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other Court shall deem proper.
(c) To the extent that a present or former director or officer
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such determination shall be
made with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid
<PAGE>
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses(including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power 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, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation(including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
