<PAGE>
As filed with the Securities and Exchange Commission on September 24, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EVERGREEN BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3114735
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
237 Glen Street
Glens Falls, New York 12801
(518) 792-1151
(Address of principal executive offices)
EVERGREEN BANCORP, INC.
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
(Full title of the plan)
Paul A. Cardinal
Executive Vice President
Evergreen Bancorp, Inc.
237 Glen Street
Glens Falls, New York 12801
(Name and address of agent for service)
(518) 792-1151
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered Per Share Price Registration Fee
Common Stock, par value 900,000 $19.125<F2> $17,212,500<F3> $5,216<F3>
$3.33-1/3 per share shares<F1>
<FN>
<F1> Represents the maximum number of shares as to which options
may be granted under the Evergreen Bancorp, Inc. Amended and Restated
1995 Stock Incentive Plan.
<F2> Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 based
upon the average of the bid and asked price reported on the National
Association of Securities Dealers, Inc. Automated Quotation System
on September 18, 1997.
<F3> Calculated pursuant to Rule 457(h)(1) under the Securities
Act of 1933.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be filed with the Securities and Exchange Commission
(the "Commission") pursuant to Note to Form S-8 adopted under the
Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to shares of common stock, par
value $3.33-1/3 per share (the "Common Stock"), of Evergreen Bancorp,
Inc. (the "Company" or the "Registrant") issuable upon the exercise
of options granted from time to time pursuant to the Evergreen Bancorp,
Inc. Amended and Restated 1995 Stock Incentive Plan (the "Plan") to
eligible employees of the Company or its subsidiaries. Upon effectiveness
of this Registration Statement, an aggregate of up to 900,000 shares
of Common Stock will be issuable upon the exercise of options granted
or the issuance of conditional shares pursuant to the Plan, subject
to adjustment in the case of stock dividends or changes in the Common
Stock.
ITEM 3. Incorporation Of Documents By Reference.
As required by the Commission, the Company hereby incorporates by
reference into this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Commission pursuant to the
requirements of Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by such Annual Report and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities have been sold or which deregisters all securities then
remaining unsold; and
(c) The description of the Company's Common Stock that is contained
in the registration statement filed by the Company to register such
securities under Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All other reports and other documents subsequently filed by the Company
pursuant to Section 13(a) and (c), 14 or 15(d) of the Exchange Act
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities have been sold or which
deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such reports or documents.
Any statement contained herein or in a document 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 is also or
is deemed to be incorporated by reference herein shall be so modified
or superseded and, except as so modified or superseded, shall not
be deemed to constitute a part of this Registration Statement.
-2-
<PAGE>
ITEM 4. Description Of Securities.
The class of securities offered is registered under Section 12 of
the Exchange Act.
ITEM 5. Interests Of Named Experts And Counsel.
Certain legal matters in connection with this Registration Statement
are being passed upon by Paul A. Cardinal, Esq., 237 Glen Street,
Glens Falls, New York 12801. Mr. Cardinal, Executive Vice President
of the Company, owns 2,918 shares of the Company's Common Stock and
has options to acquire an additional 16,000 shares of Common Stock.
ITEM 6. Indemnification Of Directors And Officers.
Section 145 of the Delaware Corporation Law (the "DCL") provides for
indemnification of officers and directors in terms sufficiently broad
to indemnify the officers and directors of the Company under certain
circumstances from liabilities (including reimbursement of expenses
incurred) arising under the Securities Act of 1933, as amended (the
"Act"). Section 102(b)(7) of the DCL permits a corporation to provide
in its certificate of incorporation that a director of the corporation
shall not be liable in their fiduciary capacity 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 intentional misconduct or a knowing violation
of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction from
which the director derived an improper personal benefit. As permitted
by the DCL, the Company's Certificate of Incorporation (the "Charter")
provides that, to the fullest extent permitted by the DCL or decisional
law, no director shall be personally liable to the Company or to its
stockholders for monetary damages for breach of his fiduciary duty
as a director. The effect of this provision in the Charter is to
eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to recover
monetary damages against a director for breach of fiduciary duty,
except in the situations described in clauses (i) through (iv), inclusive,
above. These provisions will not alter the liability of directors
under federal securities laws. The Company's By-Laws (the "By-Laws")
provide that the Company shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, sit or proceeding, whether civil or criminal,
administrative or investigative by reason of the fact that he is or
was a director, officer, employee or agent of the Company or is or
was serving at the request of the Company as a director, officer,
employee or agent of any other corporation or enterprise (including
an employee benefit plan), against all expenses, liabilities and losses
(including attorneys' fees, judgments, fines, ERISA excise taxes and
penalties, and amounts paid or to be paid in settlement, and any interest,
assessments, or other charges imposed thereof, and any taxes imposed
on such person as a result of such payments) reasonably incurred or
suffered by such person in connection with investigating, defending,
being a witness in, or participating in (including an appeal), or
preparing for any of the foregoing in any such action, suit or proceeding,
to the fullest extent authorized by the DCL, provided that the Company
shall indemnify such person in connection , suit or proceeding initiated
by such person only if authorized by the Board of Directors of the
Company or brought to enforce certain indemnification rights. The
By-Laws also provide that expenses incurred by an officer or director
of the Company, provided that if required by the DCL such expenses
shall be advanced only upon delivery to the Company of an undertaking
by or on behalf of such officer or director to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified
by the Company. Expenses incurred by other agents of the Company
may be advance upon such terms and conditions as the Board of Directors
of the Company deems appropriate. Any obligation to reimburse the
Company for expenses advanced under such provisions shall be unsecured
and no interest shall be charged thereon.
-3-
<PAGE>
The By-Laws also provide that indemnification provided for in the
By-Laws shall not be deemed to be exclusive of any other rights to
which the indemnified party may be entitled; that any right of
indemnification or protection provided under the By-Laws shall
not be adversely affected by any amendment, repeal or modification of
the By-Laws; and that the Company may purchase and maintain insurance
to protect itself and any such person against any such expenses,
liabilities or losses under the DCL or the By-Laws. In addition to
the above, the Company currently provides indemnity insurance pursuant
to which officers and directors are indemnified or insured against
liabilities or losses under certain circumstances, which may include
liability or related loss under the Securities Act and the Exchange Act.
ITEM 7. Exemption From Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
The following exhibits are filed as a part of this Registration
Statement:
3.1 Certificate of Incorporation and amendments thereto.
3.2 Amended and Restated By-Laws (incorporated
herein by reference to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1995)
(File No. 0-10275).
4.1 Evergreen Bancorp, Inc. Amended and Restated
1995 Stock Incentive Plan.
5.1 Opinion of Paul A. Cardinal, Esq. regarding
legality of securities being registered.
23.1 Consent of KPMG Peat Marwick LLP, Independent
Public Accountants.
23.2 Consent of Paul A. Cardinal, Esq. -- contained
in the opinion filed as Exhibit 5.1.
24.1 Power of Attorney - see signature page.
ITEM 9. Undertakings.
(1) The undersigned Registrant hereby undertakes to file, during
any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration
Statement to the extent that such information required to be included
by clauses (i) or (ii) is not contained in periodic reports filed
by the Company pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference into this 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 (1)(a)(i) and (1)(a)(ii)
do not apply if the information required to be included by those paragraphs
is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement.
-4-
<PAGE>
(b) 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.
(c) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for the
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 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.
(3) 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 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 governed by the final adjudication of such issue.
[Balance of this page is intentionally left blank]
-5-
<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 State of New York on
September 24, 1997.
EVERGREEN BANCORP, INC.
By: /s/George W. Dougan
George W. Dougan,
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints George W. Dougan and
Paul A. Cardinal, and each of them acting individually, as his
attorney-in-fact, each with full power of substitution, for him in any and
all capacities, to sign any and all amendments and post-effective amendments
to this Registration Statement, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and
Exchange Commission, and is hereby ratifying and confirming our signatures
as they may be signed by our said attorney to any and all amendments
and post-effective amendments to said Registration Statement.
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.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
/s/George W. Dougan Chairman of the Board, September 24, 1997
George W. Dougan President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/George L. Fredette Senior Vice President - Finance September 24, 1997
George L. Fredette and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/John W. Bishop Director September 24, 1997
John W. Bishop
/s/Carl R. DeSantis, Sr. Director September 24, 1997
Carl R. DeSantis, Sr.
/s/Robert F. Flacke Director September 24, 1997
Robert F. Flacke
-6-
<PAGE>
/s/Michael D. Ginsburg Director September 24, 1997
Michael D. Ginsburg
/s/Joan M. Mannix Director September 24, 1997
Joan M. Mannix
/s/Anthony J. Mashuta Director September 24, 1997
Anthony J. Mashuta
/s/Phillip H. Morse Director September 24, 1997
Phillip H. Morse
/s/William E. Philion Director September 24, 1997
William E. Philion
/s/Alan R. Rhodes Director September 24, 1997
Alan R. Rhodes
/s/Floyd H. Rourke Director September 24, 1997
Floyd H. Rourke
/s/Paul W. Tomlinson Director September 24, 1997
Paul W. Tomlinson
/s/Walter Urda Director September 24, 1997
Walter Urda
</TABLE>
-7-
<PAGE>
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
<S> <C>
Exhibit Page
3.1 Certificate of Incorporation and amendments thereto.
3.2 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995.
(File 0-10275)).
4.1 Evergreen Bancorp, Inc. Amended and Restated 1995 Stock Incentive
Plan.
5.1 Opinion of Paul A. Cardinal, Esq. regarding legality of
securities being registered.
23.1 Consent of KPMG Peat Marwick LLP, Independent Public Accountants.
23.2 Consent of Paul A. Cardinal, Esq. - contained in the
opinion filed as Exhibit 5.1.
24.1 Power of Attorney - see signature page.
</TABLE>
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FIRST GLEN BANCORP, INC.
The undersigned incorporator, in order to form a corporation under
the General Corporation Law of the State of Delaware, certifies as
follows:
1. Name. The name of the corporation is
FIRST GLEN BANCORP, Inc. (hereinafter called the "Corporation").
2. Address; Registered Agent. The address of the Corporation's
registered office is 100 West Tenth Street, City of Wilmington, County
of New Castle, State of Delaware; and its registered agent at such
address is The Corporation Trust Company.
3. Purposes. The nature of the business and purposes to be
conducted or promoted by the Corporation are to engage in, carry on
and conduct any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. Number of Shares. The total number of shares of stock which
the Corporation shall have authority to issue is: One Million (1,000,000),
all of which shall be shares of Common Stock of the par value of Ten
Dollars ($10.00) each.
5. Name and Address of Incorporator. The name and mailing address
of the incorporator are: Thomas B. Kinsock, 611 Olive St., Suite
1400, St. Louis, Missouri 63101.
6. Directors; Election and Classification.
(a) Members of the Board of Directors may be elected either by written
ballot or by voice vote.
(b) The Board shall consist of seventeen (17) persons and shall be
divided into three classes, with the first class to comprise six (6)
members, the second class to comprise six (6) members, and the third
class to comprise five (5) members. At the election of the first
Board, the class of each of the seventeen members then elected shall
be designated. The term of office of those members then designated
as the first class shall expire at the annual meeting of shareholders
next ensuing, that of the members designated as the second class at
the annual meeting of shareholders one year thereafter, and that of
the members designated as the third class at the annual meeting of
shareholder two years thereafter. At each annual meeting of shareholders
held after the election and classification of the first Board, directors
shall be elected for a full term of three (3) years to succeed those
members whose terms then expire.
7. Adoption, Amendment and/or Repeal of By-Laws. The Board of
Directors may from time to time (after adoption by the undersigned
of the original by-laws of the Corporation adopt, amend or repeal
the by-laws of the Corporation; provided, that any by-laws adopted,
amended or repealed by the Board of Directors may be amended or repealed,
and any by-laws may be adopted, by the stockholders of the Corporation
8. Compromise and Arrangements. Whenever a compromise or arrangement
is proposed between this Corporation and its creditors or any class
of them and/or between this corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State
of Delaware may, on the application in a summary way of this Corporation
or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the
provisions of section 291 of Title 8 of the Delaware Code or on the
<PAGE>
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of section 279
of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of creditors
of this Corporation, as the case may be, to be summoned in such manner
as the said court directs. If a majority in number representing three-fourths
in value of the creditors or class of creditors, and/or of the stockholders
or class of stockholder of this Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall,
if sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of this Corporation,
as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, this certificate has been signed on this 31st
day of October, 1980, and the signature of the undersigned shall constitute
the affirmation and acknowledgment of the undersigned, under penalties
of perjury, that the Certificate is the act and deed of the undersigned
and that the facts stated in the Certificate are true.
/s/ Thomas B. Kinsock
Thomas B. Kinsock, Incorporator
-2-
<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF FIRST GLEN BANCORP, INC.
Before Payment of Capital
Pursuant to Section 241 of the General Corporation Law, as amended,
the undersigned, being a majority of the directors of the above-named
Delaware corporation (the "Corporation"), hereby certify as follows:
ONE: At a meeting of the board of directors of the Corporation,
duly called and held, a majority of the directors acting by resolution
adopted the following amendment to the Certificate of Incorporation
of the Corporation:
1. Article 4 of the Certificate of Incorporation of the Corporation,
which sets forth the classes and numbers of shares of stock of the
Corporation, shall be amended in its entirety to read as follows:
4. Number and Classes of Shares; Relative Rights, Preferences, and
Limitations. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is One Million, Five
Hundred Thousand (1,500,000), of which One Million (1,000,000) shares
of the par value of Ten Dollars ($10.00) each, amounting in the aggregate
to Ten Million Dollars ($10,000,000), shall be common stock and Five
Hundred Thousand (500,000) shares of the par value of Ten Dollars
($10.00) each, amounting in the aggregate to Five Million Dollars
(5,000,000), shall be preferred stock.
The preferred stock may be issued from time to time in one or more
series for any proper corporate purpose without further action by
the shareholders. The designations, preferences and other rights
and limitations or restrictions of the preferred stock of each series
(other than such as are stated and expressed herein) shall be such
as may be fixed by the Board of Directors (authority so to do being
hereby expressly granted) and stated and expressed in a resolution
or resolutions adopted by the Board of Directors providing for the
initial issue of preferred stock of such series. Such resolution
or resolutions shall (a) fix the dividend rights of holders of shares
of such series, including the dividend rate thereon, whether such
dividends shall be cumulative, and, if so, on what terms, (b) fix
the terms on which stock of such series may be redeemed, including
amounts payable upon redemption if the shares of such series are to
be redeemable, (c) fix the rights of the holders of stock of such
series upon dissolution, liquidation or any distribution of assets,
(d) fix the terms or amount of the sinking fund, if any, to be provided
for the purchase or redemption of stock of such series, (e) fix the
terms upon which the stock of such series may be converted into or
exchanged for stock of any other class or classes or of any one or
more series of preferred stock, if the shares of such series are to
be convertible or exchangeable, (f) fix the voting rights, if any,
of the shares of such series and (g) fix such other designations,
preferences, and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof desired
to be so fixed.
<PAGE>
Except to the extent otherwise provided in the resolution of
resolutions of the Board of Directors providing for the initial
issue of shares of a particular series or expressly required by
law, holders of shares of preferred stock of any series shall be
entitled to one vote for each share thereof so held, shall vote
share-for-share with the holders of the common stock without
distinction as to class and shall not be entitled to vote
separately as a class or a series of a class. The number of
shares of preferred stock may be increased or decreased from time
to time by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote, and the holders of
the preferred stock shall not be entitled to vote separately as a
class or series of a class on any such increase or decrease.
All shares of any one series of preferred stock shall be identical
with each other in all respects except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon shall accumulate, and all series of preferred stock shall
rank equally and be identical in all respects except as specified
in the respective resolutions of the Board of Directors providing
for the initial issue thereof. Subject to the prior and superior
rights of the preferred stock as set forth in any resolution or
resolutions of the Board of Directors providing for the initial issue
of a particular series of preferred stock, such dividends (payable in
cash, stock or otherwise) as may be determined by the Board of Directors
may be delayed and paid on the common stock from time to time out of any
fund legally available therefor, and the preferred stock shall not
be entitled to participate in any such dividend.
No holder of stock of the Corporation shall be entitled as a matter
of right, preemptive or otherwise, to subscribe for or purchase any
part of any stock now or hereafter authorized to be issued, or shares
thereof held in the treasury of the Corporation or securities convertible
into stock, whether issued for cash or other consideration or by way
of dividend or otherwise.
2. Subsection (b) of Article 6 of the Certificate of Incorporation
of the Corporation, which sets forth the number and classes of the
directors of the Corporation, which sets forth the number and classes
of the directors of the Corporation, shall be amended in its entirety
to read as follows:
"(b) The Board of Directors shall be divided into three classes.
The number of directors of the first class shall equal one-third
(1/3) of the total number of directors as determined in the manner
provided in the By-Laws (with fractional remainders to count as one);
the number of directors of the second class shall equal one-third
(1/3) of said total number of directors (or the nearest whole number
thereto); and the number of directors of the third class shall equal
said total number of directors minus the aggregate number of directors
of the first and second classes. At the election of the first Board
of Directors, the class of each of the members then elected shall
be designated. The term of office of each member then designated
as a director of the first class shall expire at the annual meeting
of the shareholders next ensuing, that of each member then designated
as a director of the second class at the annual meeting of shareholders
one year thereafter, and that of each member then designated as a
director of the third class at the annual meeting of shareholders
two years thereafter. At each annual meeting of shareholders held
after the election and classification of the first Board of Directors,
directors shall be elected for a full term of three (3) years to succeed
those members whose terms then expire."
-2-
<PAGE>
TWO: The Corporation has not received any payment for any of its
stock.
IN WITNESS WHEREOF, this Certificate has been signed on this 11th
day of March, 1981, and the signature of the undersigned shall constitute
the affirmation and acknowledgment of the undersigned, under penalties
of perjury, that the Certificate is the act and deed of the undersigned
and that the facts stated in the Certificate are true.
/s/William L. Bitner
(Seal) William L. Bitner III, President
ATTEST:
/s/Michael P. Brassel
Michael P. Brassel, Secretary
-3-
<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
First Glen Bancorp, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable
the following amendments to the Certificate of Incorporation of said
corporation:
RESOLVED that the Certificate of Incorporation of First Glen Bancorp,
Inc. be amended by changing Article 4 thereof so that, as amended,
said Article shall be and read as follows:
4. Number and Classes of Shares; Relative Rights, Preferences, and
Limitations
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is Two Million, Five Hundred Thousand
(2,500,000), of which Two Million (2,000,000) shares of the par value
of Five Dollars ($5.00) each, amounting in the aggregate to Ten Million
Dollars ($10,000.000), shall be common stock and Five Hundred Thousand
(500,000) shares of the par value of Ten Dollars ($10.00) each, amounting
in the aggregate to Five Million Dollars ($5,000,000), shall be preferred
stock.
The preferred stock may be issued from time to time in one or more
series for any proper corporate purpose without further action by
the shareholders. The designations, preferences and other rights
and limitations or restrictions of the preferred stock of each series
(other than such as are stated and expressed herein) shall be such
as may be fixed by the Board of Directors (authority so to do being
hereby expressly granted) and stated and expressed in a resolution
or resolutions adopted by the Board of Directors providing for the
initial issue of preferred stock of such series. Such resolution
or resolutions shall (a) fix the dividend rights of holders of shares
of such series, including the dividend rate thereon, whether such
dividends shall be cumulative, and, if so, on what terms, (b) fix
the terms on which stock of such series may be redeemed, including
amounts payable upon redemption if the shares of such series are to
be redeemable, (c) fix the rights of the holders of stock of such
series upon dissolution, liquidation or any distribution of assets,
(d) fix the terms or amount of the sinking fund, if any, to be provided
for the purchase or redemption of stock of such series, (e) fix the
terms upon which the stock of such series may be converted into or
exchanged for stock of any other class or classes or of any one or
more series of preferred stock, if the shares of such series are to
be convertible or exchangeable, (f) fix the voting rights, if any,
of the shares of such series and (g) fix such other designations,
preferences, and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof desired
to be so fixed.
Except to the extent otherwise provided in the resolution or resolutions
of the Board of Directors providing for the initial issue of shares
of a particular series or expressly required by law, holders of shares
of preferred stock of any series shall be entitled to one vote for
each share thereof so held, shall vote share-for-share with the holders
of the common stock without distinction as to class and shall not
be entitled to vote separately as a class or a series of a class.
The number of shares of preferred stock may be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, and the holders
of the preferred stock shall not be entitled to vote separately as
a class or series of a class on any such increase or decrease.
All shares of any one series of preferred stock shall be identical
with each other in all respects except that shares of any one series
issued at different times may differ as to the dates
<PAGE>
from which dividends thereon shall accumulate, and all series of
preferred stock shall rank equally and be identical in all respects
except as specified in the respective resolutions of the Board of
Directors providing for the initial issue thereof. Subject to the
prior and superior rights of the preferred stock as set forth in any
resolution or resolutions of the Board of Directors providing for the
initial issue of a particular series of preferred stock, such
dividends (payable in cash, stock or otherwise) as may be determined
by the Board of Directors may be declared and paid on the common
stock from time to time out of any fund legally available therefor,
and the preferred stock shall not be entitled to participate in any
such dividend.
No holder of stock of the Corporation shall be entitled as a matter
of right, preemptive or otherwise, to subscribe for or purchase any
part of any stock now or hereafter authorized to be issued, or shares
thereof held in the treasury of the Corporation or securities convertible
into stock, whether issued for cash or other consideration or by way
of dividend or otherwise.
BE IT FURTHER RESOLVED, that the Certificate of Incorporation of
First Glen Bancorp, Inc. be amended by changing Article 6 thereof
so that, as amended said Article shall be and read as follows:
6. Directors; Election and Classification.
(a) Members of the Board of Directors may be elected either by written
ballot or by voice vote.
(b) The Board shall consist of a minimum of five and a maximum of
twenty-five members. The total number of directors may be changed
from time to time within the above minimum and maximum numbers by
vote of the majority of the total number of directors then in office,
provided that such total number of directors may not be increased
by more than two between any two successive annual meetings of
shareholders. Directors need not be stockholders and each director
shall hold office until his successor is elected and qualified
or until his earlier death, resignation or removal.
(c) The Board of Directors shall be divided into three classes.
The number of directors of the first class shall equal one-third
(1/3) of the total number of directors determined in the manner provided
in subdivision (b) above (with fractional remainders to count as one);
the number of directors of the second class shall equal one-third
(1/3) of said total number of directors (or the nearest whole number
thereto); and the number of directors of the third class shall equal
said total number of directors minus the aggregate number of directors
of the first and second classes. At the election of the first Board
of Directors, the class of each of the members then elected shall
be designated. The term of office of each member then designated
as a director of the first class shall expire at the annual meeting
of the shareholders next ensuing, that of each member then designated
as a director of the second class at the annual meeting of shareholders
one year thereafter, and that of each member then designated as a
director of the third class at the annual meeting of shareholders
two years thereafter. At each annual meeting of shareholders held
after the election and classification of the first Board of Directors,
directors shall be elected for a full term of three (3) years to succeed
those members whose terms then expire.
(d) At a special meeting of shareholders called expressly for that
purpose, any director, or the entire Board of Directors, may be removed
from office at any time, without cause, but only by the affirmative
vote of the holders of not less than eighty percent (80%) of the shares
of the Corporation then entitled to vote in an election of directors.
At a special meeting of shareholders called expressly for that purpose,
a director may be removed by the shareholders for cause by the affirmative
vote of the holders of a majority of the shares then entitled to vote
in an election of directors. Except as may otherwise be provided
by law, cause for removal shall be construed to exist only if the
director whose removal is proposed (i) has been convicted of a felony
by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal or (ii) has been adjudged by a court of
competent jurisdiction to be liable for negligence or misconduct in the
performance of his duty to the Corporation in a matter of substantial
importance to the Corporation, and such adjudication is no longer
subject to direct appeal.
-2-
<PAGE>
(e) Notwithstanding any other provision of the Certificate of Incorporation
to the contrary, the affirmative vote of the holders of not less than
eighty percent (80%) of the shares of the Corporation then entitled
to vote in an election of directors shall be required to alter, amend
or repeal, or to adopt any provision inconsistent with the provisions
of this Article 6.
BE IT FURTHER RESOLVED, that the Certificate of Incorporation of First
Glen Bancorp, Inc. amended by adding a new Article 9 to said certificate
which shall reach as follows.
9. Shareholder Approval of Business Combinations. The approval
of any Business Combination (as hereinafter defined) shall, in addition
to any affirmative vote required by law or any other provision of
this Certificate of Incorporation, require the affirmative vote of
the holders of not less than eighty percent (80%) of the shares of
the Corporation then entitled to vote generally in the election of
directors of the Corporation voting as a single class, with each share
to have one (1) vote; provided, however, that any such Business Combination
may be approved by the affirmative shareholder vote required by law
or otherwise, if: (a) such Business Combination is approved by not
less than eighty percent (80%) of the entire Board of Directors of
the Corporation, or (b) the consideration to be received per share
by holders of Common Stock of the Corporation and by holders of each
other class of stock entitled to vote generally in the election of
directors of the Corporation, if any, is Fair Consideration (as hereinafter
defined).
a. Definitions for the purposes of Article 9:
1. "Business Combination" shall mean as follows:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (1) any Substantial Shareholder (as
hereinafter defined), or (2) any other corporation which, after such
merger or consolidation, would be a Substantial Shareholder, regardless
of which entity survives;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Substantial Shareholder of all or substantially all of the
assets of the Corporation or any Subsidiary, or both;
(iii) the adoption of any plan or proposal for the liquidation
of the Corporation proposed by or on behalf of a Substantial Shareholder;
or
-3-
<PAGE>
(iv) any transaction involving the Corporation or any Subsidiary,
including any issuance, transfer or reclassification or any securities
of, or any recapitalization of, the Corporation or any Subsidiary,
or any merger or consolidation of the Corporation with any Subsidiary
(whether or not involving a Substantial Shareholder), if the transaction
would have the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity
or convertible securities of the Corporation or any Subsidiary, of
which a Substantial Shareholder is the Beneficial Owner.
2. "Substantial Shareholder" shall mean and include any individual,
corporation, partnership or other person or entity (other than the
Corporation or any Subsidiary) which, together with its "Affiliates"
and "Associates" (as such terms were defined as of December 11, 1984,
under Rule 13d-3 under the Securities Exchange Act of 1934) is the
Beneficial Owner (as hereinafter defined) in the aggregate of more
than five percent (5%) of the voting power of the then-outstanding
shares of the Corporation entitled to vote generally in an election
of directors; and any Affiliate or Associate of any such individual
corporation, partnership or other person or entity.
3. "Beneficial Owner" - The term "Beneficial Owner" shall be defined
with reference to the rules and regulations of the Securities and
Exchange Commission under the Securities and Exchange Act of 1934
as in effect from time to time provided that in addition thereto a
person shall be a Beneficial Owner of any capital stock or be considered
to "Beneficially" own any capital stock:
(i) which such person or any of its Affiliates and Associates beneficially
owns, directly or indirectly; or
(ii) which such person or any of its Affiliates and Associates has
(1) the right to acquire (whether such right is exercisable immediately
or only after the passage of time) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (2) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purposes of
acquiring, holding, voting or disposing of any shares of capital stock.
4. "Subsidiary" shall mean any corporation of which a majority of
any class of equity security is owned, directly or indirectly by the
Corporation.
5. "Fair Consideration" shall mean,
(i) in the case of shares of Common Stock of the Corporation, an
amount in cash or readily available funds at least equal to the highest
of the following (whether or not the Substantial Shareholder has previously
acquired any such shares):
(a) the highest per share price paid by the Substantial Shareholder
for any such shares acquired by it within the four-year period immediately
preceding the first public announcement of the proposal of the Business
Combination (hereinafter referred to as the "Announcement Date"),
plus an "Adjustment" of such price, as defined hereafter in this
Article 9;
(b) the highest reported per share price at which such shares were
publicly traded during the two-year period immediately preceding the
Announcement Date, plus an "Adjustment" of such price, as defined
hereafter in this Article 9;
-4-
<PAGE>
(c) the per share fair market value of such shares on the Announcement
Date, plus an "Adjustment" of such value, as defined hereafter in
this Article 9; or
(d) the book value per share of the Common Stock of the Corporation
(determined in accordance with generally accepted accounting principles)
as of the end of the latest fiscal quarter preceding the Announcement
Date, plus an "Adjustment" of such value as defined hereafter in this
Article 9.
(ii) and in the case of any other shares of voting stock of the Corporation
outstanding, an amount in cash or readily available funds at least
equal to the highest of the following (whether or not the Substantial
Shareholder has previously acquired any such shares):
(a) the highest per share price paid by the Substantial
Shareholder for any such shares acquired by it within
the four-year period immediately preceding the
Announcement Date, plus an "Adjustment" of such price,
as defined hereafter in this Article 9:
(b) the highest reported per share price at which such
shares were publicly traded during the two-year
period immediately preceding the Announcement Date,
plus an "Adjustment" of such price, as defined hereafter
in this Article 9;
(c) the per share fair market value of such shares on the
Announcement Date, plus an "Adjustment" or such
price, as defined hereafter in this Article 9; or
(d) the highest preferential amount per share to which
the holders of such shares are entitled in the
event of voluntary or involuntary liquidation or
dissolution or the Corporation.
An "Adjustment" of any price or value per share for shares of stock
of the Corporation under this Article 9 shall equal an amount of interest
on such price or value compounded annually from the Announcement Date
until the consummation of the Business Combination (the "Consummation
Date"), or, in the case of subdivisions (a) and (b) in each of subsections
5 (i) and 5 (ii) in this Article 9, from the date the Substantial
Shareholder first became a Substantial Shareholder (the "Determination
Date") until the Consummation Date, at a market prime rate of interest
as may be determined from time to time by a majority of the Board
of Directors of the Corporation, less the aggregate amount of any
cash dividends per share paid on such class of shares during such
period up to but not in excess of such amount of interest.
Notwithstanding any other provision of this Certificate of Incorporation
or any provision of law or any preferred stock designation to the
contrary, but in addition to any affirmative vote of the holders of
any particular class or series of outstanding voting stock of the
Corporation required by law or this Certificate of Incorporation or
any preferred stock designation of this Corporation, the affirmative
vote of the holders of at least eighty percent (80%) of the voting
power of the then outstanding shares of the Corporation then entitled
to vote in an election of directors, voting together as a single class,
shall be required to alter, amend or repeal, or to adopt any provision
inconsistent with, this Article 9 or any provision of this Article 9.
SECOND: that the foresaid amendments were duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation
Law of the State of Delaware by a majority of shareholders of First
Glen Bancorp, Inc. at the annual meeting of First Glen Bancorp, Inc.
on March 20, 1985
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<PAGE>
IN WITNESS WHEREOF, said First Glen Bancorp, Inc. has caused the
Certificate to be signed by G. Nelson Lowe, its Senior Vice President,
and attested by Michael P. Brassel, its Secretary, this 5th day of
April, 1985.
First Glen Bancorp, Inc.
By /s/ G. Nelson Lowe
G. Nelson Lowe
Senior Vice President
Attest:
By /s/ Michael P. Brassel
Michael P. Brassel
Secretary
Filed: April 15, 1985
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<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
First Glen Bancorp, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted the following resolution proposing and declaring
advisable the following amendment to the Certificate of Incorporation
as amended of said corporation:
RESOLVED that the Certificate of Incorporation as amended of First
Glen Bancorp, Inc. be amended by changing Article 1 thereof so that,
as amended, said Article shall be and read as follows:
1. Name. The name of the corporation is EVERGREEN BANCORP, Inc.
(hereinafter called the "Corporation").
SECOND: That the foresaid amendment was duly adopted in accordance
State of Delaware by a majority of shareholders of First Glen Bancorp,
Inc. at the with the applicable provisions of Section 242 of the General
Corporation Law of the annual meeting of First Glen Bancorp, Inc.
on April 23, 1986.
IN WITNESS WHEREOF: said First Glen Bancorp, Inc. has caused the
Certificate to be signed by Michael P. Brassel, its Senior Vice President,
and attested by Kathleen Martinez, it Secretary, this 23rd day of
April, 1986.
First Glen Bancorp, Inc.
By /s/ Michael P. Brassel
Michael P. Brassel
Senior Vice President
Attest:
By /s/ Kathleen G. Martinez
Kathleen G. Martinez
Secretary
Filed: April 29, 1986
<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Evergreen Bancorp, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted the following resolution proposing and declaring
advisable the following amendment to the Certificate of Incorporation
as amended of said corporation:
RESOLVED that the Certificate of Incorporation as amended of Evergreen
Bancorp, Inc. be amended by changing the first sentence of Article
4 thereof so that, as amended, said first paragraph of Article 4 shall
be and read as follows:
4. Number and Classes of Shares; Relative Rights, Preferences,
and Limitations
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is Four Million, Five Hundred Thousand
(4,500,000), of which Four Million (4,000,000) shares of the par value
of Three Dollars, Thirty Three and one Third Cents ($3.33 1/3) each,
amounting in the aggregate to Thirteen Million Three Hundred Thirty
Three Thousand Three Hundred Thirty Three and One Third
Dollars ($13,333,333 1/3), shall be common stock and Five Hundred
Thousand (500,000) shares of the par value of Ten Dollars ($10.00)
each, amounting in the aggregate to Five Million Dollars ($5,000,000),
shall be preferred stock.
SECOND: that the foresaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation
law of the State of Delaware by a majority of shareholders of Evergreen
Bancorp, Inc. at the annual meeting of Evergreen Bancorp, Inc. on
April 23, 1986.
THIRD: that the aforesaid amendment shall become effective on
the close of business on May 30, 1986.
IN WITNESS WHEREOF: said Evergreen Bancorp, Inc. has caused
the Certificate to be signed by Michael P. Brassel, its Senior Vice
President, and attested by Kathleen Martinez, its Secretary, this
19 day of May, 1986.
Evergreen Bancorp, Inc.
By /s/ Michael P. Brassel
Michael P. Brassel
Attest: Senior Vice President
By /s/ Kathleen G. Martinez
Kathleen G. Martinez
Secretary
Filed: May 29, 1986
<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Evergreen Bancorp, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted the following resolution proposing and declaring
advisable the following amendment to the Certificate of Incorporation
as amended of said corporation:
RESOLVED: That the Certificate of Incorporation of EVERGREEN BANCORP,
INC. as now in effect be amended by adding the following Article 10
thereto:
10. No director of the Corporation shall be 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.
SECOND: That the foresaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation
Law of the State of Delaware by a majority of stockholders of Evergreen
Bancorp, Inc. at the annual meeting of Evergreen Bancorp, Inc., on
April 15, 1987.
IN WITNESS WHEREOF: Said Evergreen Bancorp, Inc. has caused the
Certificate to be signed by Michael P. Brassel, its Senior Vice President,
and attested by Kathleen Martinez, its Secretary, this 15th day of
April, 1987.
Evergreen Bancorp, Inc.
By: /s/ Michael P. Brassel
Michael P. Brassel
Senior Vice President
Attest:
By: /s/ Kathleen G. Martinez
Kathleen G. Martinez
Secretary
Filed: May 13, 1987
<PAGE>
EXHIBIT 3.1 (cont.)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Evergreen Bancorp, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted the following resolution proposing and declaring
advisable the following amendment to the Certificate of Incorporation
as amended of said corporation;
RESOLVED: That the Certificate of Incorporation as amended of Evergreen
Bancorp, Inc., be amended by changing the first sentence of Article
4 thereof so that, as amended, said first sentence of Article 4 shall
be and read as follows:
4. Number and Classes of Shares; Relative Rights, Preferences,
and Limitations
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is Twenty Million, Five Hundred Thousand
(20,500,000), of which Twenty Million (20,000,000) shares of the par
value of Three Dollars, Thirty Three and One Third Cents ($3.33 1/3)
each, amounting in the aggregate to Sixty Six Million Six Hundred
Sixty Six Thousand Six Hundred Sixty Six and Two Thirds Dollars
($66,666,666.67) shall be common stock and Five Hundred Thousand
(500,000) shares of the par value of Ten Dollars ($10.00) each,
amounting in the aggregate to Five Million Dollars ($5,000,000),
shall be preferred stock.
SECOND: that the foresaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation
Law of the State of Delaware by a majority of stockholders of Evergreen
Bancorp, Inc. at the annual meeting of Evergreen Bancorp, Inc. on
April 14, 1988.
IN WITNESS WHEREOF: said Evergreen Bancorp, Inc., has caused this
Certificate to be signed by Michael P. Brassel, its Senior Vice President,
and attested by Kathleen G. Martinez, its Secretary, this 16 day of
May, 1988.
Evergreen Bancorp, Inc.
By /s/ Michael P. Brassel
Michael P. Brassel
Attest: Senior Vice President
By /s/ Kathleen G. Martinez
Kathleen G. Martinez
Secretary
Filed: May 31, 1988
<PAGE>
EXHIBIT 4.1
[logo]
EVERGREEN BANCORP, INC.
AMENDED AND RESTATED
1995 STOCK INCENTIVE PLAN
1. Purpose. The purpose of the Evergreen Bancorp, Inc. (the
"Company") 1995 Stock Incentive Plan (the "Plan") is to advance the interests
of the Company and its stockholders by aiding the Company in attracting,
retaining and motivating employees of the Company and its Affiliates.
2. Definitions. For purposes of the Plan, the following terms
shall be defined as set forth below:
(a) "Affiliate" means:
(i) A member of a controlled group of corporations of which the
Company is a member;
(ii) Any majority-owned subsidiary of either the Company or its
principal banking subsidiary, Evergreen Bank, N.A.; or
(iii) An unincorporated trade or business which is under common
control with the Company as determined in accordance with Section
414(c) of the Internal Revenue Code of 1986, as amended (the "Code")
and 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 Section 1563(a)(4) and (e)(3)(C)
of the Code.
(b) "Award" means the grant of any Stock Option, Limited
Alternate Right or Conditional Share granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means, for purposes of the Plan,
an event of the nature that:
(i) Would be required to be reported in response to Item 1(a) of
the current report on Form F-3, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Exchange Act; or
(ii) Results in a Change in Control of the Company within the meaning
of the Change in Bank Control Act of 1978, as amended, and the Rules
and Regulations promulgated by the Federal Deposit Insurance Company
at 12 C.F.R. Section 303.4(a), as in effect on the date hereof; or
(iii) Without limiting the above conditions, such a Change in Control
shall be deemed to have occurred at such time as:
(A) Any "person" (as the term is used in Section 13(d) and 14(d)
of the Exchange Act), or group of persons acting in concert, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly, of any class of equity securities
of the Company representing 25% or more of a class of equity securities,
except that a securities purchase or purchases by the Company's employee
<PAGE>
stock ownership plan and trust that exceeds, in the aggregate, 25%
or more of a class of equity securities shall not be deemed to be
a Change in Control under this Plan; 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 shareholders was approved
by the same 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; or
(C) A plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Company or any similar
transaction occurs in which the Company is not or will not be 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
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 Company; or
(E) A tender offer is made for 25% or more of the voting securities
of the Company then outstanding.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the Human Resources and Nominating
Committee of the Board. Such committee, or a subcommittee thereof
formed for the purposes of making discretionary awards under this Plan,
shall be comprised at all times solely of at least two "non-employee
directors", as that term is defined under Rule 16b-3 of the Exchange
Act promulgated by the Securities and Exchange Commission, or any
successor regulation.
(g) "Common Stock" means the common stock, par value $3.33-1/3
per share, of the Company.
(h) "Conditional Share" means a share of the Common Stock of the
Company, such share becoming the sole property of a Participant upon
the fulfillment of performance and/or tenure requirements as set forth
by the Committee pursuant to Section 7 of the Plan.
(i) "Date of Grant" means the date an Award is made to
a Participant.
(j) "Disability" means any physical or mental condition which
may reasonably be expected to be permanent and which renders the
Participant incapable of continuing as an employee for his customary
hours of employment, provided, however, that such disability originated
while the Participant was in the active service of the Company, and (1)
did not arise while engaged in or as a result of having engaged in
an illegal or criminal act or an act contrary to the best interests
of the Company, or (2) did not result from habitual drunkenness or
addiction to narcotics or a self-inflicted injury while sane or insane.
To aid the Committee and determining whether such disability exists,
the Committee may require, as a condition precedent to the receipt
of any benefits hereunder, that the Participant submit to examinations
by one or more duly licensed and practicing physicians selected by
the Committee.
(k) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time. References to any provision of the
Exchange Act shall be deemed to include successor provisions thereto
and regulations thereunder.
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<PAGE>
(l) "Fair Market Value" means with respect to shares of Common
Stock or other property, the fair market value of such shares or other
property determined by such methods or procedures as shall be established
from time to time by the Committee. If the shares are listed on any
established stock exchange or a national market system then, unless
otherwise determined by the Committee in good faith, the Fair Market
Value of Shares shall mean the closing price per share on the immediately
preceding date (or, if the shares were not traded on that day, the
next preceding day that the shares were traded) on the national market
system or principal exchange on which the Common Stock is traded,
as such prices are officially quoted.
(m) "Normal Retirement" means retirement at the normal or early
retirement date as set forth in any tax-qualified retirement/pension
plan of the Company. If no such plan is in place, it shall mean
termination of employment at or after age 65.
(n) "Participant" means any employee of the Company or its
Affiliates selected by the Committee to participate in the Plan for
the current Plan year.
(o) "Plan Year" means a calendar year commencing on or after
January 1, 1995.
(p) "Stock Option" shall mean a right granted to a Participant
to purchase Common Stock of the Company at a specified price (the
"Strike Price") for a specified period. Such Stock Options may be
granted by the Committee as either:
(i) Incentive Stock Options - Those Stock Options so specified
by the Committee at the Date of Grant as being intended to comply
with the provisions of Section 422 of the Internal Revenue Code of
1986 as from time to time amended; or
(ii) Non-Qualified Stock Options - Those Stock Options so specified
by the Committee at the Date of Grant as not being intended to qualify
as Incentive Stock Options.
(q) "Stock Agreement" shall mean the agreement entered into
between the Company and the Participant pursuant to the terms of the
Company's 1995 Stock Incentive Plan.
(r) "Termination for Cause" means the Company's termination of
any Participant's employment for the following: (i) the commission
of any intentional acts or conduct by the Participant involving moral
turpitude; (ii) the gross negligence by the Participant in complying
or otherwise in performing his required duties for the Company; (iii)
the commission of any intentional act of dishonesty in the performance
of the Participant's duties for the Company; or (iv) the deliberate
and intentional refusal by Participant during the term of his employment,
other than by reason of incapacity due to illness or accident, to
obey lawful directives from the Chief Executive Officer or the Board
of Directors of the Company.
3. Administration. (a) Authority of the Committee. Except
as expressly provided in this Plan, the Plan shall be administered
by the Committee, and the Committee shall have full and final authority
to take the following actions, in each case subject to and consistent
with the provisions of the Plan:
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(i) to select participants to whom Awards may be granted;
(ii) to designate Affiliates;
(iii) to determine the type or types of Awards to be granted to each
Participant;
(iv) to determine the type and number of Awards to be granted, the
number of shares of Common Stock to which an Award may relate, the
terms and conditions of any Award granted under the Plan (including,
but not limited to, any exercise price, grant price, or purchase price,
and any bases for adjusting such exercise, grant or purchase price,
any restriction or condition, any schedule for lapse of restrictions
or conditions relating to transferability or forfeiture, exercisability,
or settlement of an Award, and waiver or accelerations thereof, and
waivers of performance conditions relating to an Award, based in each
case on such considerations as the Committee shall determine), and
all other matters to be determined in connection with an Award;
(v) to determine whether, to what extent, and under what circumstances
an Award may be settled, or the exercise price of an Award may be
paid, in cash, shares of Common Stock, other Awards, or other property,
or an Award may be canceled, forfeited, exchanged, or surrendered;
(vi) to determine whether, to what extent, and under what circumstances
cash, shares of Common Stock, other Awards, or other property payable
with respect to an Award will be deferred either automatically, at
the election of the Committee, or at the election of the Participant;
(vii) to prescribe the form of each Stock Agreement, which need not
be identical for each Participant;
(viii) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary
or advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and
any Award, rules and regulations, Stock Agreement, or other instrument
hereunder;
(x) to accelerate the exercisability or vesting of all or any portion
of any Award or to extend the period during which an Award is
exercisable; and
(xi) to make all other decisions and determinations as may be required
under the terms of the Plan or as the Committee may deem necessary
or advisable for the administration of the Plan.
(b) Manner of Exercise of Committee Authority. The Committee shall
have sole discretion in exercising its authority under the Plan.
Any action of the Committee with respect to the Plan shall be final,
conclusive, and binding on all persons, including the Company,
Affiliates, Participants, any person claiming any rights under the
Plan from or through any Participant, and stockholders. The express
grant of any specific power to the Committee, and the taking of any
action by the Committee, shall not be construed as limiting any power
or authority of the Committee. The Committee may delegate to officers
or managers of the Company or any Affiliate the authority, subject to
such terms as the Committee shall determine, to perform administrative
functions and, with respect to Awards granted to persons not subject
to Section 16 of the Exchange Act, to perform such other functions as
the Committee may determine, to the extent permitted under Rule 16b-3
(if applicable) and other applicable law.
(c) Limitation of Liability. Each member of the Committee shall
be entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any officer or other employee
of the Company or any Affiliate, the Company's independent certified
public accountants, or other professional retained by the Company
to assist in the administration of the Plan. No member of the Committee,
nor any officer or employee of the Company acting on behalf of the
Committee, shall be personally liable for any action, determination,
or interpretation taken or
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made in good faith with respect to the Plan, and all members of the
Committee and any officer or employee of the Company acting on their
behalf shall, to the extent permitted by law, be fully indemnified
and protected by the Company with respect to any such action,
determination, or interpretation.
4. Participation. (a) Each Plan Year, the Committee shall,
in its sole discretion, determine which employees of the Company and
its Affiliates shall participate in the Plan. Participation in the
Plan for one Plan Year is neither a guarantee of participation in
future Plan Years nor a guarantee of future employment.
(b) At the time an employee is named as a Participant in the Plan,
the Committee shall notify such Participant of the Award. Such notification
shall identify:
(i) The number of Stock Options granted (if any) and their terms
and conditions, including whether such stock options carry Limited
Alternate Rights; and
(ii) The number of Conditional Shares granted (if any) and their
terms and conditions.
5. Stock Options. (a) The Committee shall have the right to
grant Stock Options to a Participant pursuant to this Section 5, and
establish the terms and provisions, including but not limited to the
exercise price, option term and methods of exercise. A Stock Option
Award shall not be considered an Incentive Stock Option unless it
is specifically designated as such in the Stock Agreement.
All Stock Option Awards shall be presumed to be Non-Qualified Stock
Options unless it is specifically stated to the contrary in a Stock
Agreement.
(b) Stock Options shall be granted at the Fair Market Value of
the Common Stock on the Date of Grant except as provided for Incentive
Stock Options in Section 5(g) below.
(c) Unless otherwise determined by the Committee, Non-Qualified
Stock Options shall become vested and be exercisable for their remaining
term following death or Disability or Normal Retirement, for three
years following termination of employment by the Company for reasons
other than Cause, for three months following the date of separation
if an employee terminates employment for any other reason, and immediately
forfeited following Termination for Cause. Incentive Stock Options
shall be exercisable for one year following death or disability; for
three months following Normal Retirement or termination of employment
by the Company for reasons other than Cause. Incentive Stock Options
shall be exercisable for three months following date of separation
if an employee terminates employment for any other reason, and immediately
forfeited following Termination for Cause. Notwithstanding the foregoing,
Stock Options shall in no event be exercisable after the date specified
in the Stock Agreement relating thereto.
(d) No Stock Options shall be exercisable for more than 10 years
following the Date of Grant. No Incentive Stock Option may be exercisable
earlier than at least one year following the Date of Grant.
(e) Unless otherwise determined by the Committee, Stock Options
may be exercised by tendering cash, a certified check, Common Stock
then owned by the Participant or any combination thereof, to the Office
of the Secretary of the Company, provided that any shares of Common
Stock tendered which were acquired through a previous Stock Option
exercise were held by the Participant for at least six months from
the Date the Grant pursuant to which they were acquired was granted.
If the optionee intends to obtain a permissible broker loan or a simultaneous
order to sell the shares issuable upon exercise of any Options, upon
the giving of at least 48 hours prior written notice to the Company,
exercise thereof shall not be deemed to occur until the
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Company receives the proceeds of the recipient's broker loan or other
permitted transaction.
(f) To the extent that the aggregate Fair Market Value of Common
Stock with respect to which Incentive Stock Options are exercisable
for the first time by a Participant during any calendar year under
the Plan and any other plan of the Company or an Affiliate of the
Company exceeds $100,000, such Stock Options shall be treated as
Non-Qualified Stock Options.
(g) No Incentive Stock Option shall be granted to a Participant
who, at the time of the grant, owns stock representing more than ten
percent (10%) of the total combined voting power of all classes of
stock either of the Company or any Affiliate of the Company, unless
the Strike Price of the shares or Common Stock issuable upon exercise
of such Incentive Stock Option is at least one hundred ten percent
(110%) of the Fair Market Value (at the time the Incentive Stock Option
is granted), and the Incentive Stock Option is not exercisable more
than five (5) years from the date it is granted.
6. Limited Alternate Rights. (a) The Committee may, in its sole
discretion, grant Limited Alternate Rights in tandem with any Stock
Option Award.
(b) Limited Alternate Rights shall entitle the holder to receive,
in lieu of exercising the Stock Option to which such Limited Alternate
Rights relate (in which event such Stock Option shall terminate),
an amount in cash equal to 100 percent of the excess of the Fair Market
Value of the Common Stock on the date of exercise times the number
of rights tendered, over the aggregate Strike Price of the Stock Options
to which the Limited Alternate Rights relate.
(c) Limited Alternate Rights shall only become vested
and exercisable:
(i) If there is a Change in Control of the Company; and,
(ii) The Stock Option to which the Limited Alternate Right is
attached has been held by the Participant for a period of at least
six months at the time the Change in Control has occurred.
7. Conditional Shares. (a) The Committee shall have the
right to grant Conditional Shares to a Participant pursuant to this
Section 7, and establish the terms and provisions, including but not
limited to vesting provisions and conditions of forfeiture.
(b) Conditional Shares represent the right to receive free of
any restrictions, shares of Common Stock on the completion of specified
performance and/or tenure requirements as set forth in a Participant's
Conditional Share agreement by the Committee. At the discretion of
the Committee, such shares may be issued to the Participant at the
time of the grant, provided such shares bear a restrictive legend
specifying that such shares cannot be sold or otherwise transferred
by the Participant.
(c) Conditional Shares shall be vested in full following death,
Disability or Normal Retirement. If a Participant terminates employment
with the Company for any other reason, all unvested Conditional Shares
shall be forfeited, except as may be determined in the judgment of
the Committee.
(d) A Participant holding Conditional Shares shall, unless otherwise
determined by the Committee, be entitled to receive dividends and
exercise voting rights with respect to such Conditional Shares even
though such Conditional Shares have not vested.
8. Designation Of Beneficiary. A Participant may, with the consent
of the Committee, designate a person or persons to receive or exercise,
in the event of the Participant's
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death, any Award to which the Participant would have been 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 to
effectively designate a beneficiary then the Participant's estate, or
legal representative, will be deemed to be the beneficiary. Except as
provided in this Section 8 and except for transfers by will or laws
of descent and distribution, or except as permitted by the Committee,
all awards granted pursuant to the Plan shall be nontransferable.
9. Change in Control Provisions. In the event of a Change in
Control, the following acceleration and cash-out provisions shall
apply unless otherwise provided by the Committee at the time of the
Award grant. All outstanding Awards pursuant to which the Participant
may have rights, the exercise of which is restricted or limited, shall
become fully exercisable at the time of the Change in Control. Unless
the right to lapse of restrictions or limitations is waived or deferred
by a Participant prior to such lapse, all restrictions or limitations
(including risks of forfeiture and deferrals) on outstanding Awards
subject to restrictions or limitations under the Plan shall lapse,
and all performance criteria and other conditions to payment of Awards
under which payments of cash, shares of Common Stock or other property
are subject to conditions shall be deemed to be achieved or fulfilled
and shall be waived by the Company at the time of the Change in Control.
10. Miscellaneous Provisions. (a) Tax Withholding. The Company's
obligations under the Plan shall be subject to applicable federal,
state, and local tax withholding requirements. Federal, state, and
local withholding tax due at the time of a grant or upon the exercise
of any Award may, in the discretion of the Committee, be paid in shares
of Common Stock already owned by the Participant upon such terms and
condition as the Committee shall determine. If the Participant shall
fail to pay, or make arrangements satisfactory to the Committee for
the payment, to the Company of all such federal, state and local taxes
required to be withheld by the Company, then the Company shall, to
the extent permitted by law, have the right to refuse to issue the
shares of Common Stock relating to the Award and/or to deduct from
any payment of any kind otherwise due to such Participant an amount
equal to any federal, state, or local taxes of any kind required to
be withheld by the Company.
(b) Amendment. The Board may amend, alter, suspend, discontinue,
or terminate the Plan or the Committee's authority to grant Awards
under the Plan without the consent of stockholders of the Company
or Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of
the Company's stockholders to the extent such stockholder approval
is required under Section 422 of the Code, Rule 16b-3 under the Exchange
Act, or any other federal or state law or regulation; provided, however,
that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the Plan
may materially and adversely affect the rights of such Participant
under any Award theretofore granted to him or her. The Committee
may waive any conditions or rights under, amend any terms of, or amend,
alter, suspend, discontinue or terminate, any Award theretofore granted,
prospectively or retrospectively; provided, however, that, without
the consent of a Participant, no amendment, alteration, suspension,
discontinuation or termination of any Award may materially and adversely
affect the rights of such Participant under any Award theretofore
granted to him or her.
(c) Applicable Law. The Plan will be administered in accordance
with the laws of the State of New York, without regard to its principles
of conflict of laws, to the extent not governed by relevant provisions
of the Exchange Act and other federal law.
(d) Shares Authorized. The Committee shall be authorized to
make Awards of Stock Options, Conditional Shares or any combination
thereof representing up to 900,000 shares of Common Stock, subject
to adjustment as provided below. Any shares of Evergreen Common
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Stock that are delivered to or withheld by the Company to satisfy the tax
withholding consequences of an option exercise or the grant or vesting
of a conditional share award shall again be available for purposes
of the 1995 Stock Incentive Plan.
(e) Maximum Award. No Participant may receive an Award of Stock
Options, Conditional Shares or any combination thereof, representing
more than 100,000 shares in any Plan Year, subject to adjustment as
provided below.
(f) Adjustments in Common Stock for Recapitalizations, Splits,
etc. In the event that the Committee shall determine that any dividend
in Common Stock, recapitalization, Common Stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase,
or share exchange, or other similar corporate transaction or event,
affects the shares of Common Stock such that an adjustment is appropriate
in order to prevent dilution or enlargement of the rights of Participants
under the Plan, then the Committee shall make such equitable changes
or adjustments as it deems appropriate and, in such manner as it may
deem equitable, adjust any or all of: (i) the number and kind of shares
which may thereafter be issued under the Plan, (ii) the number and
kind of shares, other securities or other consideration issued or
issuable in respect of outstanding Awards, (iii) the exercise price,
grant price, or purchase price relating to any Award, and (iv) the
Maximum Award; provided, however, in each case that, with respect
to Incentive Stock Options, such adjustment shall be made in accordance
with Section 424(a) of the Code, unless the Committee determines otherwise.
In addition, the Committee is authorized to make adjustments in the
terms and conditions of, and the criteria and performance objectives
included in, Awards in recognition of unusual or nonrecurring events
(including, without limitation, events described in the preceding
sentence) affecting the Company or any Affiliate or the financial
statements of the Company or any Affiliate, or in response to changes
in applicable laws, regulations, or accounting principles.
(g) Compliance with Legal and Trading Requirements. The Plan, the
granting and exercising of Awards thereunder, and the other obligations
of the Company under the Plan and any Stock Agreement, shall be subject
to all applicable federal and state laws, rules and regulations, and
to such approvals by any regulatory or governmental agency as may
be required. The Company, in its discretion, may postpone the issuance
or delivery of shares of Common Stock under any Award until completion
of such stock exchange or market system listing or registration or
qualification of such shares of Common Stock or other required action
under any state or federal law, rule or regulation as the Company
may consider appropriate, and may require any Participant to make
such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of shares
of Common Stock in compliance with applicable laws, rules and regulations.
No provisions of the Plan shall be interpreted or construed to obligate
the Company to register any shares Common Stock under federal or
state law.
(h) Unfunded Status of Awards. The Plan is intended to constitute
an "unfunded" plan for incentive compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Participant
any rights that are greater than those of a general creditor of the
Company; provided, however, that the Committee may authorize the creation
of trusts or make other arrangements to meet the Company's obligations
under the Plan to deliver cash, shares of Common Stock, other Awards,
or other property pursuant to any Award, which trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan unless
the Committee otherwise determines with the consent of each affected
Participant.
(i) Non-exclusivity of the Plan. Neither the adoption of the Plan
by the Board nor its submission to the stockholders of the Company
for approval shall be construed as creating any limitations on the
power of the Board to adopt such other incentive arrangements as it
may deem
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desirable, including, without limitation, the granting of options and
other awards otherwise than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
11. Effective Date Of The Plan. The Plan, as amended and restated,
shall become effective January 16, 1997, subject to approval by a
majority vote of the stockholders of record of the Company at the
1997 annual meeting. The Plan shall terminate on April 1, 2005, or
such earlier date as determined by the Board.
Effective Date: April 20, 1995; amended and
restated effective January 16, 1997.
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EXHIBIT 5.1
September 24, 1997
Evergreen Bancorp, Inc.
237 Glen Street
Glens Falls, New York 12801
Ladies and Gentlemen:
I have acted as counsel to Evergreen Bancorp, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of
a Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, with respect to up to
900,000 shares (the "Shares") of Common Stock, par value $3.33-1/3
per share, of the Company reserved for issuance under the Company's
Amended and Restated 1995 Stock Incentive Plan (the "Plan").
It is my opinion that the Shares have been duly authorized and,
when issued pursuant to the Plan upon the exercise of stock options
in the manner contemplated by the Plan against receipt of the exercise
price therefor (assuming that the exercise price of the stock options
underlying such Shares will not be less than the par value of such
Shares), will be validly issued, fully paid and nonassessable.
This opinion is limited to federal law and the laws of the State
of New York. I have assumed that there will be no changes in applicable
law between the date of this opinion and the issuance of the Shares
upon the exercise of the stock options granted pursuant to the Plan.
I hereby consent to the use of my name under the caption "Legal
Matters" and the filing of this opinion with the Commission as an
exhibit to the Registration Statement.
Very truly yours,
/s/Paul A. Cardinal
Paul A. Cardinal
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Evergreen Bancorp, Inc.
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Evergreen Bancorp, Inc. of our report, dated
January 24, 1997, relating to the consolidated statements of condition
of Evergreen Bancorp, Inc. and subsidiaries as of December 31, 1996 and
1995, 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, 1996, which report appears in the December 31, 1996
Annual Report on Form 10-K of Evergreen Bancorp, Inc.
/s/ KPMG PEAT MARWICK LLP
Albany, New York
September 24, 1997
