AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 8, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORTH FORK BANCORPORATION, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-3154608
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
275 Broad Hollow Road
Melville, New York 11747
(Address of Principal Executive Offices) (Zip Code)
North Fork Bancorporation, Inc. 1997 Non-Officer Stock Plan
(Full Title of the Plan)
John Adam Kanas
Chairman, President and Chief Executive Officer
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
(Name and Address of Agent For Service)
(516) 844-1004
(Telephone Number, Including Area Code,
of Agent For Service)
Copies of all correspondence to:
Thomas B. Kinsock, Esq.
Gallop, Johnson & Neuman, L.C.
Interco Corporate Tower
101 South Hanley Road
St. Louis, Missouri 63105
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Proposed Maximum
Title Of Securities Amount To Be Maximum Offering Aggregate Amount Of
To Be Registered Registered(1) Price Per Share(2) Offering Price Registration fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 250,000 $26.3125 $6,578,125 $1,940.55
$2.50 par value per
share
================================================================================================================================
<FN>
(1) Represents maximum number of shares of Common Stock available for
issuance under the North Fork Bancorporation, Inc. 1997 Non-Officer
Stock Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933, and is based upon the average of the high
and low prices per share of the Registrant's Common Stock as reported on
the New York Stock Exchange on June 5, 1998.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) All other reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report referred to in (a) above; and
(c) The description of the Registrant's common stock which is contained
in the registration statement filed by the Registrant under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such 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 documents. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
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 in any other subsequently filed document that also is
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.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
generally provides that a corporation may indemnify directors, officers,
employees or agents against liabilities they may incur in such capacities
provided certain standards are met, including good faith and the reasonable
belief that the particular action was in, or not opposed to, the best interests
of the corporation.
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<PAGE>
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under standards similar to those set forth above, except that no indemnification
may 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 Delaware Court of Chancery or the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that, among other things, to
the extent that a director or officer of a corporation has been successful in
the defense of any action, suit or proceeding referred to in Subsections (a) and
(b) of Section 145, or in the defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and that a corporation is empowered
to purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify against such liability under
Section 145.
Indemnification as described above shall be granted in a specific case
only upon a determination that indemnification is proper under the circumstances
using the applicable standard of conduct which is made by (a) a majority of
directors who were not parties to such proceeding, (b) independent legal counsel
in a written opinion if there are no such disinterested directors or if such
disinterested directors so direct, or (c) the shareholders.
Article 8.1 of the Bylaws of the Registrant provides that the Registrant
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, suit or proceeding by
reason of the fact that he or she is or was a director or officer of the
Registrant against expenses (including attorneys' fees), judgments, fines and
settlement payments actually and reasonably incurred by him or her to the
fullest extent permitted by the DGCL and any other applicable law, as may be in
effect from time to time.
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<PAGE>
Section 102(b)(7) of the DGCL ("Section 102(b)(7)") permits the
certificate of incorporation of a corporation to provide that a director shall
not be personally liable to the corporation or its stockholders for monetary
damages for breach of his or her 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 DGCL (dealing with unlawful dividends or unlawful stock
purchases or redemptions), or (iv) for any transaction from which the director
derived an improper personal benefit. Article 10 of the Registrant's Certificate
of Incorporation provides that, subject only to the express prohibitions on
elimination or limitation of liability of directors as are set forth in Section
102(b)(7), as the same may be amended from time to time, directors shall not be
liable for monetary damages in excess of $25,000 per occurrence resulting from a
breach of their fiduciary duties.
The Registrant maintains a director and officer liability insurance
policy providing for the insurance on behalf of any person who is or was a
director or officer of the Registrant and subsidiary companies against any
liability incurred by such person in any such capacity or arising out of such
person's status as such. The insurer's limit of liability under the policy is
$10 million, with an additional $10 million excess policy, in the aggregate for
all insured losses per year. The policy contains various reporting requirements
and exclusions.
Section 8(k) of the Federal Deposit Insurance Act (the "FDI Act")
provides that the FDIC may prohibit or limit, by regulation or order, payments
by any insured depository institution or its holding company for the benefit of
directors and officers of the insured depository institution, or others who are
or were "institution-affiliated parties," as defined under the FDI Act, if such
payments are on behalf of or in reimbursement of such person for any liability
or legal expense sustained with regard to any administrative or civil
enforcement action which results in a final order against the person. The FDIC
has adopted implementing regulations prohibiting, subject to certain exceptions,
insured depository institutions, their subsidiaries and affiliated holding
companies from indemnifying officers, directors or employees for any civil money
penalty or judgment resulting from an administrative or civil enforcement action
commenced by any federal banking agency, or for that portion of the costs
sustained with regard to such an action that results in a final order or
settlement that is adverse to the director, officer or employee.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
See Exhibit Index.
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 of 1933;
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<PAGE>
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this 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
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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)-(g) Not Applicable.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(i) Not Applicable.
(j) Not Applicable.
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<PAGE>
SIGNATURES
The Registrant. 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 Melville, state of New York, on June 8, 1998.
NORTH FORK BANCORPORATION, INC.
By: /s/ John Adam Kanas
John Adam Kanas,
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of North Fork Bancorporation,
Inc., hereby severally and individually constitute and appoint John Adam Kanas
and Daniel M. Healy and each of them, the true and lawful attorneys and agents
of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8 and all instruments necessary or advisable in
connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the other and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents
and each of them to any and all such amendments and instruments.
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.
Name Title Date
/s/ John Adam Kanas Chairman, President, May 4, 1998
John Adam Kanas Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Daniel M. Healy Executive Vice President, April 28, 1998
Daniel M. Healy Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ John Bohlsen Director April 28, 1998
John Bohlsen
/s/ Irvin L. Cherashore Director April 28, 1998
Irvin L. Cherashore
/s/ Allan C. Dickerson Director April 27, 1998
Allan C. Dickerson
/s/ Lloyd A. Gerard Director April 27, 1998
Lloyd A. Gerard
/s/ Patrick E. Malloy, III Director April 28, 1998
Patrick E. Malloy, III
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<PAGE>
/s/ Thomas M. O'Brien Director April 27, 1998
Thomas M. O'Brien
/s/ James F. Reeve Director April 27, 1998
James F. Reeve
/s/ George H. Rowsom Director April 28, 1998
George H. Rowsom
/s/ Kurt R. Schmeller Director April 27, 1998
Kurt R. Schmeller
/s/ Raymond W. Terry, Jr. Director April 27, 1998
Raymond W. Terry, Jr.
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<PAGE>
FORM S-8
North Fork Bancorporation, Inc.
EXHIBIT INDEX
Exhibit
Number Description Page
- ------- ----------- ----
4.1 North Fork Bancorporation, Inc. 1997 Non-Officer
Stock Plan.
5.1 Opinion of Gallop, Johnson & Neuman, L.C.
23.1 Consent of KPMG Peat Marwick LLP, independent
auditors.
23.2 Consent of Gallop, Johnson & Neuman, L.C.
(included in Exhibit 5.1).
24.1 Power of Attorney (included on signature
page of the registration statement).
NORTH FORK BANCORPORATION, INC.
1997 Non-Officer Stock Plan
Section 1. Establishment and Purpose
North Fork Bancorporation, Inc. (the "Company") hereby establishes an
incentive plan to be named the North Fork Bancorporation, Inc. 1997 Non-Officer
Stock Plan (the "Plan"), for certain valued employees of the Company and its
subsidiaries. Eligibility for awards would be limited to full-time employees who
are not "officers" of the Company for purposes of certain reporting rules
promulgated by the Securities and Exchange Commission and/or listing rules
promulgated by the New York Stock Exchange, Inc. The purpose of the Plan is to
encourage those valued employees who are given awards under the Plan to acquire
and maintain an interest in the Common Stock of the Company and thus to have
additional incentive to continue to work for the success of the Company and its
subsidiaries. This Plan shall become effective upon its approval by the Stock
and Compensation Committee of the Board of Directors.
Section 2. Definitions
Whenever used herein, the following terms shall have the respective
meanings set forth below:
(a) Award means any Option or Restricted Stock or right to
receive either granted under the Plan.
(b) Award Agreement means the written agreement evidencing an
Award under the Plan, which shall be executed by the Company
and the Participant.
(c) Committee means the Stock and Compensation Committee of
the Board of Directors of the Company (or any successor to
such Committee).
(d) Company means North Fork Bancorporation, Inc., a Delaware
corporation.
(e) Disability means permanent and total disability as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended, as determined by the Committee in good faith upon
receipt of and in reliance on sufficient competent medical
advice.
(f) Eligible Employee means any salaried full-time employee
of the Company or any Subsidiary other than an Excluded
Person.
(g) Excluded Person means (i) any individual who is an
"officer" of the Company as defined in Rule 3b-2 promulgated
by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, including but not limited to
any individual who currently is a reporting person under
Section 16(a) of such Act by virtue of being an officer of the
Company, (ii) any individual who is deemed an "officer" of the
Company within the meaning of Rule 312.03 promulgated by the
New York Stock Exchange, Inc., or (iii) any director of the
Company.
(h) Exercise Price of an Option means a price fixed by the
Committee upon grant of the Option as the purchase price for
Stock under the Option, as such may be adjusted under Section
11 of the Plan.
(i) Fair Market Value of the Stock as of any particular day
means (i) for any period during which the Stock shall be
listed for trading on a national securities exchange, the
average of the high and low prices per share of the Stock on
such exchange on the last preceding day on which trading
occurred on such exchange, (ii) for any period during which
the Stock shall not be listed for trading on a national
securities exchange, but when prices for the Stock shall be
reported by the National Market System of the National
Association of Securities Dealers Automated Quotation System
("NASDAQ"), the average of the high and low transaction prices
per share for the Stock as quoted by the National Market
System of NASDAQ on the last preceding day on which securities
markets were open, or (iii) in the event neither (i) nor (ii)
applies, the fair market price per share of the Stock for such
day as determined by the Board of Directors of the Company.
(j) Option means the right to purchase Stock at the Exercise
Price for a specified period of time and subject to specified
conditions. For purposes of the Plan, all Options shall be
so-called nonqualified (or nonstatutory) stock options, not
qualifying as "incentive stock options" under Section 422 of
the Internal Revenue Code of 1986, as amended.
(k) Participant means any Eligible Employee designated by the
Committee to receive an Award under the Plan.
(l) Period of Restriction means that period during which
Restricted Stock is both subject to certain restrictions on
transfer and subject to forfeiture as specified in Section 10
of the Plan.
(m) Restricted Stock means shares of Stock awarded to an
Eligible Employee that are both subject to certain
restrictions on transfer and are subject to forfeiture as
specified in Section 10 of the Plan.
(n) Stock means the Common Stock of the Company.
(o) Subsidiary means any corporation or entity a majority of
the voting stock or voting interest of which is owned or
controlled, directly or indirectly, by the Company.
(p) Taxable Event means an event relating to an Award granted
under the Plan which requires federal, state or local tax to
be withheld by the Company or a Subsidiary.
(q) Termination for Cause means, (i) for any Participant
serving under an employment agreement containing a provision
for termination of employment for "cause," termination of
employment of the Participant for "cause" pursuant to such
provision, and (ii) for any other Participant, termination of
employment of the Participant by a two-thirds vote of the
entire Board of Directors of the Company or the Subsidiary
employing such Participant, expressly for one or both of the
following "causes," as evidenced in a certified resolution of
the Board: (A) any willful misconduct by the Participant which
is materially injurious to the Company or the Subsidiary,
monetarily or otherwise; or (B) conviction of the Participant
with no further possibility of appeal of a felony under
applicable state or federal banking or financial institution
laws, or the agreement of the Participant to plead guilty to
any such felony.
Section 3. Administration
The Plan will be administered by the Committee. The Committee will have
sole authority and discretion to select those Eligible Employees who will
receive Awards under the Plan and to determine the number and type of Awards to
be granted to such Eligible Employees and the conditions applicable to such
Awards, consistent with the terms of this Plan, provided that the Committee
shall have the authority from time to time to designate a subcommittee
consisting of one or more directors of the Company who are also executive
officers of the Company, which subcommittee shall have the authority to make
such determinations on behalf of the Committee under the Plan as the Committee
shall specify, any such determinations if and when made by such a subcommittee
to be deemed for all purposes to be determinations of the Committee. Any
determination of the Committee under the Plan may be made without notice or
meeting thereof, and all actions made or taken by the Committee pursuant to the
provisions of the Plan shall be final, binding and conclusive for all purposes
and upon all persons.
Section 4. Duration
The duration of the Plan is to be twelve (12) months, from December 1,
1997 to November 30, 1998, inclusive.
Section 5. Shares Reserved Under the Plan
Initially, there shall be reserved for issuance under the Plan on the
books of the Company 250,000 shares of Stock, and, thereafter, there shall be
reserved for issuance under the Plan such number of shares of Stock as the
Committee or the Board of Directors may specify from time to time, provided that
there shall be reserved for issuance at all times a number of shares of Stock at
least equal to the number of shares then subject to Options previously granted
under the Plan and not theretofore fully exercised, cancelled or expired.
Section 6. Participants
Persons eligible for grants of Awards under the Plan will be those
Eligible Employees of the Company or any Subsidiary who are expected to provide
valuable and significant services to the Company or such Subsidiary, as
determined by the Committee in its sole discretion and as evidenced by the
decision of the Committee to grant Awards to such individuals. In making all
determinations under the Plan, the Committee shall adhere carefully to all laws
and regulations requiring nondiscriminatory treatment of employees. Subject to
the foregoing, the Committee shall consider such factors as it deems pertinent
in selecting Eligible Employees to receive Awards and in determining the type
and amount of their respective Awards. Designation of an Eligible Employee as a
Participant to receive an Award in any year shall not require the Committee to
designate such Eligible Employee to receive an Award in any subsequent year or
to designate any other Eligible Employee to receive an Award in such year or any
subsequent year.
Section 7. Types of Awards
The following Awards, and rights thereto, may be granted under the Plan
in any proportion: Options and Restricted Stock, as described in Sections 9 and
10 below, respectively. Except as specifically limited herein, the Committee
shall have complete discretion in determining the type and number of Awards to
be granted to any Eligible Employee and, subject to the provisions of the Plan,
the terms and conditions which attach to each Award, which terms and conditions
need not be uniform as among different Participants. Each Award shall be
evidenced by an Award Agreement, as provided in Section 8 of the Plan. From time
to time, as the Committee deems appropriate and in the best long-term interests
of the Company and its stockholders, the Committee may elect to modify or waive
one or more terms or conditions of an outstanding Award previously granted to a
Participant under the Plan, provided that (i) no such modification or waiver
shall give the Participant or any other Participant under the Plan any right to
a similar modification or waiver of any other Award previously or subsequently
granted under the Plan, (ii) no such modification or waiver of an Award shall
involve a change in the number of shares subject to the Award or a change in the
Exercise Price of an Option, and (iii) any such modification or waiver which is
adverse or arguably adverse to the interests of the Participant holding such
Award shall not be effective unless and until the Participant shall consent
thereto.
<PAGE>
Section 8. Award Agreements
Within ten business days after the grant of an Award, the Company shall
notify the Participant of the grant and shall hand deliver or mail to the
Participant an Award Agreement, duly executed by and on behalf of the Company,
with the request that the Participant execute the Agreement within 30 days after
the date of mailing or delivery by the Company and return the same to the
Company. The date of execution and return of the Award Agreement shall not
necessarily be or affect the date of grant of the Award, which may precede such
date of execution and return, as the Committee may determine. If the Participant
shall fail to execute and return to the Company the Award Agreement within said
30-day period, the Award shall be deemed void and never to have been granted.
Section 9. Options
(a) All Options granted under the Plan shall be nonqualified stock
options, that is, options that do not qualify as "incentive stock options" under
Section 422 of the Internal Revenue Code of 1986, as amended. Such Options shall
constitute options to purchase shares of Stock at an Exercise Price established
by the Committee upon grant, which Exercise Price shall not be less than, but
may be more than, 100 percent of the Fair Market Value of the Stock as of the
date of grant.
(b) The Committee shall establish upon grant of an Option the period of
time during which such Option will be exercisable by the Participant, provided
that no Option will continue to be exercisable, in whole or in part, later than
ten years after the date of grant. Subject to this limitation, the Committee may
provide that full exercisability of an Option granted under the Plan will be
phased in and/or phased out over some designated period of time. The Committee
also may provide that exercisability of an Option will be accelerated, to the
extent such Option is not already then exercisable, upon the occurrence of a
certain event or events as specified by the Committee, such as the retirement of
the Participant or a change in control of the Company. Generally, exercisability
of an Option granted under the Plan is conditioned upon continued employment of
the Participant by the Company and its Subsidiaries, provided that the Committee
may specify upon grant that exercisability of an Option will continue for some
designated period of time after termination of employment. If the Committee does
not specify otherwise, an Option granted under the Plan will continue to be
exercisable after termination of employment of the Participant, to the extent
such Option was exercisable at termination of employment, in accordance with the
following principles: (i) if employment is terminated other than due to the
death, Disability or a Termination for Cause of the Participant, exercisability
will continue for 90 days after the date of termination; (ii) if employment is
terminated due to the death of the Participant, exercisability will continue
until the normal end of the exercise period of the Option, as established upon
grant thereof, (iii) if employment is terminated due to Disability,
exercisability will continue for one full year after the date of termination,
and (iv) if employment is terminated in a Termination for Cause, exercisability
will terminate immediately. Notwithstanding the preceding sentence, in no event
may any Option granted under the Plan be exercised after the tenth anniversary
of the date of grant. Leaves of absence required by law or otherwise granted by
the Company and transfers of employment between the Company and/or Subsidiaries
shall not constitute a termination of employment.
(c) Upon exercise of an Option, in whole or in part, the Exercise Price
with respect to the number of shares as to which the Option is then being
exercised may be paid by check or, if the Participant so elects and with the
consent of the Committee (which consent may be withheld for any reason or no
reason), in whole or in part by delivery to the Company of shares of Stock then
owned by the Participant. Any Participant-owned Stock to be used in full or
partial payment of the Exercise Price shall be valued at the Fair Market Value
of the Stock on the date of exercise. Delivery by the Company of the shares as
to which an Option has been exercised shall be made to the person exercising the
Option or the designee of such person. If so provided by the Committee upon the
grant of an Option, the shares of Stock issuable upon exercise of the Option may
be subject to certain restrictions upon their subsequent transfer or sale. In
the event the Exercise Price is to be paid in full or in part by surrender of
Stock, in lieu of actual surrender of shares of Stock by the Participant, the
Company may waive such surrender and instead deliver to or on behalf of the
Participant a number of shares equal to the total number of shares as to which
the Option is then being exercised less the number of shares which would
otherwise have been surrendered by the Participant to the Company.
(d) The Committee may require reasonable advance notice of exercise of
an Option, normally not to exceed three calendar days, and may condition
exercise of an Option upon the availability of an effective registration
statement or exemption from registration under applicable federal and state
securities laws relating to the Stock being issued upon exercise.
Section 10. Restricted Stock
(a) Restricted Stock shall consist of Stock or rights to Stock awarded
under the Plan by the Committee which, during a Period of Restriction specified
by the Committee upon grant, shall be subject to (i) restriction on sale or
other transfer by the Participant and (ii) forfeiture by the Participant to the
Company if the Participant ceases to be employed by the Company and its
Subsidiaries, in each case as further defined and described in this Plan and by
the Committee upon grant. Restricted Stock may be granted at no cost to
Participants or, if subject to a purchase price, such price shall not exceed the
par value of the Stock and shall be payable by the Participant to the Company in
cash or by any other means that the Committee deems appropriate, including
recognition of past employment.
(b) Except as otherwise provided below, the minimum Period of
Restriction for Restricted Stock shall be three years from the date of grant of
the Award. The Committee may provide upon grant of an Award of Restricted Stock
that different numbers or portions of the shares subject to the Award shall have
different Periods of Restriction. The Committee also may specify upon grant of
an Award of Restricted Stock or thereafter while such Award is outstanding that
any Period of Restriction for the Restricted Stock subject to the Award
otherwise still in effect will terminate immediately upon the occurrence of a
specified event or one of several specified events, such as the retirement of
the Participant or a change in control of the Company. The Committee also may
establish upon grant of an Award of Restricted Stock that some or all of the
shares subject thereto shall be subject to additional restrictions upon transfer
or sale by the Participant (although not to forfeiture) after expiration of the
Period of Restriction.
(c) The Participant shall be entitled to all dividends declared and
paid on Stock with respect to all shares of Restricted Stock held by the
Participant, from and after the date such shares are awarded to the Participant
and throughout the Period of Restriction except as otherwise specified by the
Committee upon grant, and the Participant shall not be required to return any
such dividends to the Company in the event of forfeiture of the Restricted
Stock.
(d) A Participant shall be entitled to vote all shares of Restricted
Stock awarded to the Participant from and after the date of grant and throughout
the Period of Restriction except as otherwise specified by the Committee upon
grant.
(e) Pending expiration of the Period of Restriction for an Award of
Restricted Stock, certificates representing shares of Restricted Stock subject
to the Award shall be held by the Company or the transfer agent for the Stock.
Upon expiration of the Period of Restriction for any such shares, certificates
representing such shares shall be delivered to the Participant or in the event
of death of the Participant, to the beneficiary of the Participant.
Section 11. Adjustment Provisions
(a) If the Company shall at any time change the number of issued shares
of Stock without new consideration to the Company (such as by a stock dividend
or stock split), the total number of shares then reserved for issuance on the
books of the Company relating to the Plan and the number of shares (and, in the
case of Options, the Exercise Price) covered by each outstanding Award shall be
adjusted so that the aggregate consideration payable to the Company, if any, and
the value of each such Award to the Participant shall not be changed. Awards may
also contain provisions for their continuation or for other equitable
adjustments after changes in the Stock resulting from any reorganization, sale,
merger or consolidation involving the Company or any Subsidiary or any issuance
of stock rights or warrants by the Company or any similar occurrence.
(b) Notwithstanding any other provision of this Plan, and without
affecting the number of shares reserved for issuance hereunder, the Board of
Directors shall use best efforts to authorize the issuance or assumption of
benefits under the Plan in connection with any merger, consolidation,
acquisition of property or stock, or reorganization involving the liquidation,
discontinuation, merger out of existence or fundamental corporate restructuring
of the Company, upon such terms and conditions as it may deem appropriate.
Section 12. Nontransferability
Each Award of an Option granted under the Plan to a Participant shall
not be transferable otherwise than by will or the laws of descent and
distribution, and shall be exercisable, during the Participant's lifetime, only
by the Participant. In the event of the death of a Participant holding an
unexercised Option, exercise of the Option may be made only by the executor or
administrator of the estate of the deceased Participant or the person or persons
to whom the deceased Participant's rights under the Option shall pass by will or
the laws of descent and distribution, and such exercise may be made only to the
extent that the deceased Participant was entitled to exercise such Option at the
date of death.
Section 13. Taxes
The Company shall be entitled to withhold, and shall withhold, the
minimum amount of any federal, state or local tax attributable to any Award
granted under the Plan, whether upon exercise of an Option or expiration or
termination of a Period of Restriction for Restricted Stock or the occurrence of
any other Taxable Event, after giving notice to the Participant affected by such
tax withholding as far in advance of the Taxable Event as practicable, and in
any such case in which repayment or indemnification of such amount by or on
behalf of the Participant is required, the Company may defer making delivery as
to any Award until such repayment or indemnification has been completed. Such
withholding obligation of the Company may be satisfied by any reasonable method,
including, if the Committee so provides, reducing the number of shares otherwise
deliverable to or on behalf of the Participant on such Taxable Event by a number
of shares having a fair value, based on the Fair Market Value of the Stock on
the date of such Taxable Event, equal to the amount of such withholding
obligation.
Upon grant of an Award, the Committee may elect to provide that the
Company shall pay on behalf of the Participant any taxes, federal, state or
local, payable by the Participant as a result of such grant, including all taxes
payable by a Participant as a result of payment of taxes by the Company on
behalf of the Participant in accordance with the first clause of this sentence.
Section 14. No Right to Employment
A Participant's right, if any, to continue to serve the Company or any
Subsidiary as an employee shall not be enhanced or otherwise affected by the
designation of such person as an Eligible Employee or as a Participant under the
Plan.
Section 15. Amendment and Termination
The Committee or the Board of Directors of the Company may amend the
Plan from time to time or terminate the Plan at any time. By mutual agreement
between the Company and a Participant, one or more Awards may be granted to such
Participant in substitution and exchange for, and in cancellation of, any
certain Awards previously granted such Participant under the Plan, provided that
any such substitution Award shall be deemed a new Award for purposes of
calculating any applicable exercise period for Options or Period of Restriction
for Restricted Stock. To the extent that any Awards which may be granted within
the terms of the Plan would qualify under present or future laws for tax
treatment that is beneficial to a Participant and not detrimental to the
Company, any such beneficial treatment shall be considered within the intent,
purpose and operational purview of the Plan and the discretion of the Committee,
and to the extent that any such Awards would so qualify within the terms of the
Plan, the Committee shall have full and complete authority to grant Awards that
so qualify (including the authority to grant, simultaneously or otherwise,
Awards which do not so qualify) and to prescribe the terms and conditions (which
need not be identical as among recipients) in respect to the grant or exercise
of any such Awards under the Plan.
Section 16. Miscellaneous Provisions
(a) Naming of Beneficiaries. In connection with an Award, a Participant
may name one or more beneficiaries to receive the Participant's benefits, to the
extent permissible pursuant to the various provisions of the Plan, in the event
of the death of the Participant.
(b) Successors. All obligations of the Company under the Plan with
respect to Awards issued hereunder shall be binding on any successor to the
Company.
(c) Governing Law. The provisions of the Plan and all Award Agreements
under the Plan shall be construed in accordance with, and governed by, the laws
of the State of Delaware without reference to conflict of laws provisions,
except insofar as any such provisions may be expressly made subject to the laws
of any other state or federal law.
June 8, 1998
Board of Directors
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
Re: Registration Statement on Form S-8
1997 Non-Officer Stock Plan
Gentlemen:
We have served as counsel to North Fork Bancorporation, Inc. (the
"Company") in connection with the various legal matters relating to the filing
of a registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, and the Rules and Regulations promulgated
thereunder, relating to 250,000 shares of common stock of the Company, par value
$2.50 per share (the "Shares"), that may be offered and sold through the North
Fork Bancorporation, Inc. 1997 Non-Officer Stock Plan (the "Plan").
We have examined such corporate records of the Company, such laws and
such other information as we have deemed relevant, including the Company's
Certificate of Incorporation, as amended, and Bylaws, as amended, certain
resolutions adopted by the Board of Directors of the Company relating to the
Plan and certificates received from state officials and from officers of the
Company. In delivering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as certified,
photostatic or conformed copies, and the correctness of all statements submitted
to us by officers of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
2. All originally issued Shares, issued under the Plan, if any, if
issued in accordance with the Plan, will be validly issued and
outstanding and will be fully paid and nonassessable.
<PAGE>
Board of Directors
North Fork Bancorporation, Inc.
June 8, 1998
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name in the Registration Statement. We also
consent to your filing copies of this opinion as an exhibit to the Registration
Statement with agencies of such states as you deem necessary in the course of
complying with the laws of such states regarding the offer and sale of the
Shares pursuant to the Plan.
Very truly yours,
/s/ GALLOP, JOHNSON & NEUMAN, L.C.
GALLOP, JOHNSON & NEUMAN, L.C.
The Stockholders and Board of Directors
North Fork Bancorporation, Inc.:
We consent to the use of our report, dated January 15, 1998, incorporated herein
by reference in the registration statement on Form S-8.
/s/ KPMG Peat Marwick, LLP
New York, New York
June 8, 1998
