As filed with the Securities and Exchange Commission on
May 22, 1996. Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
INDEPENDENT BANK CORP.
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(Exact Name of Registrant as Specified in Charter)
MASSACHUSETTS 04-2870273
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(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
288 Union Street, Rockland, Massachusetts 02370
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(Address of Principal Executive Offices) (Zip Code)
INDEPENDENT BANK CORP. 1996 NON-EMPLOYEE
DIRECTORS' STOCK OPTION PLAN
----------------------------
(Full Title of the Plan)
Douglas H. Philipsen
Independent Bank Corp.
288 Union Street
Rockland, MA 02370
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(Name and Address of Agent For Service)
(617) 878-6100
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(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
Lawrence M. Levinson, Esq.
Burns & Levinson, LLP
125 Summer Street
Boston, Massachusetts 02110
(617) 345-3000
<PAGE>
CALCULATION OF THE REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share (2) Price (2) Fee
- ---------- ---------- ----- ----- ---
Common Stock 300,000 $7.75 $2,325,000 $801.72
($.01 par
value)
- -------------------------------------------------------------------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any
additional shares of Common Stock which become issuable under the
Independent Bank Corp. 1996 Non-Employee Directors' Stock Option Plan
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the Company's outstanding
shares of Common Stock.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
determining the registration fee, based upon the average of the high
and low sales prices, as reported on the National Market System of the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), on May 16, 1996.
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Explanatory Note
----------------
In accordance with the Instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission (the "Commission"), the
information specified by Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers of Common Stock of Independent
Bank Corp. (the "Company") pursuant to the Independent Bank Corp. 1996
Non-Employee Directors' Stock Option Plan (the "Plan").
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Part II Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995.
(b) The description of the Common Stock included in the Registrant's
Registration Statement on Form 8-A filed with the Commission on January 21,
1986.
(c) The amended description of the Common Stock included in the
Registrant's amendment on Form 8 to its Registration Statement on Form 8-A filed
with the Commission on May 20, 1991.
All reports and other documents subsequently filed by the Registrant
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 prior to the filing of a post-effective
amendment which indicates that all securities covered by this Registration
Statement have been sold or which deregisters all securities then remaining
unsold, shall be determined to be incorporated by reference in the Registration
Statement and to be part thereof from the date of filing of such documents.
Item 4. Description of Securities.
- -----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------------------------------------------------
Lawrence M. Levinson, a partner in Burns & Levinson, LLP, counsel to
the Registrant, is a director of the Registrant and, as of May 1, 1996, was the
beneficial owner of 552,239 shares of Common Stock of the Registrant, and
non-qualified stock options to purchase 5,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
- ---------------------------------------------------
Incorporated herein by reference from the Registrant's Registration
Statement on Form S-4 (Registration No. 33-00229), as amended.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Not applicable.
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Item 8. Exhibits.
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Exhibit No. Description
- ---------- -----------
4.1 Form of Common Stock Certificate (filed as Exhibit 4.1 to the
Registrant's Report on Form 10-K for the year ended December 31, 1992,
and incorporated herein by reference).
4.2 Form of Rights Certificate (filed as Exhibit B to Exhibit 1) to the
Registrant's Registration Statement on Form 8-A, filed with the
Commission on May 7, 1991 and incorporated herein by reference.
4.3 Restated Articles of Organization of the Registrant (filed as Exhibit
3(i) to the Registrant's Report on Form 10-K for the year ended
December 31, 1993, and incorporated herein by reference).
4.4 By-laws, as amended to date, of the Registrant (filed as Exhibit 3(ii)
to the Registrant's Report on Form 10-K for the year ended December 31,
1990, and incorporated herein by reference).
5. Opinion of Burns & Levinson LLP with respect to the original issuance
of securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Burns & Levinson LLP (included in Exhibit 5).
24. Power of Attorney to file future amendments (included in Part II of the
Registration Statement).
99. Independent Bank Corp. 1996 Non-Employee Directors' Stock Option Plan.
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.
(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
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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 the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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Signatures
----------
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 Town of Rockland, Commonwealth of Massachusetts, on May
9, 1996.
INDEPENDENT BANK CORP.
By: /s/John F. Spence,Jr.
--------------------------
John F. Spence, Jr.,
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Douglas H. Philipsen and Richard J.
Seaman, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him and in
his name, place and stead, and in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said authority to do and perform each and ever act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them or their or his substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
/s/ Richard S. Anderson Date: May 9, 1996
- -----------------------
Richard S. Anderson
Director
/s/ Donald K. Atkins Date: May 9, 1996
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Donald K. Atkins
Director
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/s/ W. Paul Clark Date: May 9, 1996
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W. Paul Clark
Director
/s/ Robert L. Cushing Date: May 9, 1996
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Robert L. Cushing
Director
/s/ Benjamin A. Gilmore Date: May 9, 1996
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Benjamin A. Gilmore, II
Director
/s/ James T. Jones Date: May 9, 1996
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James T. Jones
Director
/s/ Lawrence M. Levinson Date: May 9, 1996
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Lawrence M. Levinson
Director
/s/ Douglas H. Philipsen Date: May 9, 1996
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Douglas H. Philipsen
Director and President
/s/ Richard H. Sgarzi Date: May 9, 1996
- ---------------------
Richard H. Sgarzi
Director
/s/ John F. Spence, Jr. Date: May 9, 1996
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John F. Spence, Jr.
Chairman of the Board and
Director
/s/ Robert J. Spence Date: May 9, 1996
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Robert J. Spence
Director
/s/ William J. Spence Date: May 9, 1996
- ---------------------
William J. Spence
Director
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- -------------------- Date: May _, 1996
Brian S. Tedeschi
Director
/s/ Thomas J. Teuten Date: May 9, 1996
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Thomas J. Teuten
Director
/s/ Richard J. Seaman Date: May 9, 1996
- ---------------------
Richard J. Seaman
Chief Financial Officer and Treasurer
(principal financial and accounting
officer)
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Independent Bank Corp.
----------------------
Index to Exhibits Filed with
Form S-8 Registration Statement
Exhibit Page
No. Description No.
- --- ----------- ----
4.1 Form of Common Stock Certificate (filed as
Exhibit 4.1 to the Registrant's report on
Form 10-K for the year ended December 31,
1992, and incorporated herein by reference).
4.2 Form of Rights Certificate (filed as Exhibit B
to Exhibit 1 to the Registration Statement on
Form 8-A, filed with the Commission on May 7,
1991 and incorporated herein by reference).
4.3 Restated Articles of Organization of the
Registrant (filed as Exhibit 3(i) to the
Registrant's Report on Form 10-K for the year
ended December 31, 1993, and incorporated
herein by reference).
4.4 By-laws, as amended to date, of the Registrant
(filed as Exhibit 3(ii) to the Registrant's Report
on Form 10-K for the year ended December 31,
1990, and incorporated herein by reference).
5. Opinion of Burns & Levinson LLP with respect
to the original issuance of securities being
registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Burns & Levinson LLP (included in Exhibit 5).
24. Power of Attorney to file future amendments
(included in Part II of the Registration
Statement).
99. Independent Bank Corp. 1996 Non-Employee
Directors' Stock Option Plan.
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EXHIBIT 5
11
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Burns & Levinson LLP
May 22, 1996
Independent Bank Corp.
277 Union Street
Rockland, MA 02370
Gentlemen:
This opinion is furnished to you in connection with the filing by
Independent Bank Corp., a Massachusetts corporation (the "Company"), with the
Securities and Exchange Commission of the Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended. You
have requested our opinion concerning the status under Massachusetts law of the
300,000 shares (the "Shares") of the Company's common stock, par value $.01 per
share ("Common Stock"), which are being registered under the Registration
Statement for issuance by the Company pursuant to the terms of the Independent
Bank Corp. 1996 Non-Employee Directors' Stock Option Plan.
We have acted as counsel to the Company in connection with the
Registration Statement. In that connection we have examined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of:
1. The Restated Articles of Organization of the Company as
presently in effect;
2. The By-Laws of the Company as presently in effect;
3. Certain resolutions adopted by the Company's Board of
Directors and Stockholders; and
4. Independent Bank Corp. 1996 Non-Employee Directors' Stock
Option Plan (the "Plan").
In our examination we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us a originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. We have also assumed that: (i) all
of the Shares will be issued for the consideration permitted under the Plan as
currently in effect, and none of such Shares will be
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issued for less than $.01; (ii) all actions required to be taken under the Plan
by the Plan Committee and the Board of Directors of the Company will be taken by
the Plan and the Board of Directors of the Company respectively; and (iii) at
the time of the exercise of the options under the Plan, the Company shall
continue to have sufficient authorized and unissued shares of Common Stock
reserved for issuance thereunder.
Based upon and subject to the foregoing, we are of the opinion that,
upon the issuance of the Shares under the Plan as provided therein, each such
Share will be duly authorized validly issued, fully paid and nonassessable.
Our opinion is limited to the laws of the Commonwealth of
Massachusetts, and we express no opinion with respect to the laws of any other
jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we consent thereto.
Very truly yours,
/s/ Burns & Levinson LLP
Burns & Levinson LLP
13
Exhibit 23.1
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14
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ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 23, 1996 included in Independent Bank Corp.'s Form 10-K for the year
ended December 31, 1995 and to all references to our firm included in this
registration statement.
Boston, Massachusetts /s/ ARTHUR ANDERSEN LLP
May 6,1996 ARTHUR ANDERSEN LLP
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EXHIBIT 99
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INDEPENDENT BANK CORP.
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
The purposes of the 1996 Non-Employee Directors' Stock Option Plan (the
"Plan") are to promote the long-term success of Independent Bank Corp. (the
"Corporation") and its subsidiaries by creating a long-term mutuality of
interests between the non-employee Directors of the Corporation and the
non-employee Directors of Rockland Trust Company, a wholly-owned subsidiary of
the Corporation ("Rockland") (collectively, the "Directors") and the
stockholders of the Corporation, to provide an additional inducement for such
Directors to remain with the Corporation and Rockland and to provide a means
through which the Corporation and Rockland may attract able persons to serve as
Directors of the Corporation and Rockland.
SECTION 1
Administration
The Plan shall be administered by a Committee (the "Committee")
appointed by the Board of Directors of the Corporation (the "Board") and
consisting of not less than two members of the Board. The Committee shall keep
records of actions taken at its meetings. A majority of the Committee shall
constitute a quorum at any meeting, and the acts of a majority of the members
present at any meeting at which a quorum is present, or acts approved in writing
by all the members of the Committee, shall be the acts of the Committee.
The Committee shall interpret the Plan and prescribe such rules,
regulations and procedures in connection with the operations of the Plan as it
shall deem to be necessary and advisable for the administration of the Plan
consistent with the purposes of the Plan. All questions of interpretation and
application of the Plan, or as to stock options granted under the Plan, shall be
subject to the determination of the Committee, which shall be final and binding.
Notwithstanding the above, the selection of the Directors to whom stock
options are to be granted, the timing of such grants, the number of shares
subject to any stock option, the exercise price of any stock option, the periods
during which any stock option may be exercised and the term of any stock option
shall be as hereinafter provided, and the Committee shall have no discretion as
to such matters.
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SECTION 2
Shares Available Under the Plan
The aggregate number of shares which may be issued and as to which
grants of stock options may be made under the Plan is 300,000 shares of the
Common Stock, par value $.01 per share, of the Corporation (the "Common Stock"),
subject to adjustment and substitution as set forth in Section 5. If any stock
option granted under the Plan is canceled by mutual consent or terminates or
expires for any reason without having been exercised in full, the number of
shares subject thereto shall again be available for purposes of the Plan. The
shares which may be issued under the Plan may be either authorized but unissued
shares or treasury shares or partly each.
SECTION 3
Grant of Stock Options
On the third business day following the day of the 1996 Annual Meeting
of Stockholders of the Corporation at which the Plan is affirmatively approved
by the holders of at least a majority of the outstanding shares of Common Stock
present in person or by proxy and entitled to vote at such meeting, each person
who is then a Director of the Corporation or of Rockland and who is not an
employee of the Corporation or any of its subsidiaries (a "non-employee
Director") shall automatically and without further action by the Board or the
Committee be granted a non-statutory stock option (i.e., a stock option which
does not qualify under Sections 422 or 423 of the Internal Revenue Code of 1986
(the "Code")) to purchase 5,000 shares of Common Stock subject to adjustment and
substitution as set forth in Section 5. In addition, each person who becomes a
non-employee Director at any time following the 1996 Annual Meeting of
Stockholders shall, on the first anniversary of his or her election as such,
automatically and without further action by the Board or the Committee be
granted a non-statutory stock option to purchase 5,000 shares of Common Stock
subject to adjustment and substitution as set forth in Section 5. Thereafter, on
the later of (a) the expiration of at least one year following a non-employee
Director's first anniversary of his or her election as such or (b) the third
business day following the day of each annual meeting of the stockholders of the
Corporation following 1996, each person who is then a non-employee Director
shall automatically and without further action by the Board or the Committee be
granted a non-statutory stock option to purchase 1,000 shares of Common Stock,
subject to adjustment and substitution as set forth in Section 5. If the number
of shares then remaining available for the grant of stock options under the
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Plan is not sufficient for each non-employee Director to be granted an option
for 1,000 shares (or the number of adjusted or substituted shares pursuant to
Section 5), then each non-employee Director shall be granted an option for a
number of whole shares equal to the number of shares then remaining available
divided by the number of non-employee Directors, disregarding any fractions of a
share. Persons who at any time are non-employee Directors of both the
Corporation and Rockland, shall be entitled to receive stock option grants under
this Plan as if such persons were non-employee Directors of the Corporation
only.
SECTION 4
Terms and Conditions of Stock Options
Stock options granted under the Plan shall be subject to the following
terms and conditions:
(A) The purchase price at which each stock option may be exercised (the
"option price") shall be one hundred percent (100%) of the fair market value per
share of the Common Stock covered by the stock option on the date of grant,
determined as provided in Section 4(G).
(B) The option price for each stock option shall be paid in full upon
exercise and shall be payable in cash in United States dollars (including check,
bank draft or money order); provided, however, that in lieu of such cash the
person exercising the stock option may pay the option price in whole or in part
by delivering to the Corporation shares of the Common Stock having a fair market
value on the date of exercise of the stock option, determined as provided in
Section 4(G), equal to the option price for the shares being purchased; except
that (i) any portion of the option price representing a fraction of a share
shall in any event be paid in cash and (ii) no shares of the Common Stock which
have been held for less than six months may be delivered in payment of the
option price of a stock option. Delivery of shares may also be accomplished
through the effective transfer to the Corporation of shares held by a broker or
other agent. The Corporation will also cooperate with any person exercising a
stock option who participates in a cashless exercise program of a broker or
other agent under which all or part of the shares received upon exercise of the
stock option are sold through the broker or other agent or under which the
broker or other agent makes a loan to such person. Notwithstanding the
foregoing, the exercise of the stock option shall not be deemed to occur and no
shares of Common Stock will be issued by the Corporation upon exercise of the
stock option until the Corporation has received payment of the option price in
full. The date of exercise of a stock option shall be determined under
procedures established by
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the Committee, and as of the date of exercise the person exercising the stock
option shall be considered for all purposes to be the owner of the shares with
respect to which the stock option has been exercised. Payment of the option
price with shares shall not increase the number of shares of the Common Stock
which may be issued under the Plan as provided in Section 2.
(C) No stock option shall be exercisable during the first six months of
its term except in case of death as provided in Section 4(E). Subject to the
preceding sentence and subject to Section 4(E) which provides for earlier
termination of a stock option under certain circumstances, each stock option
shall be exercisable for ten years from the date of grant and not thereafter. A
stock option to the extent exercisable at any time may be exercised in whole or
in part.
(D) No stock option shall be transferable by the grantee otherwise than
by will, or if the grantee dies intestate, by the laws of descent and
distribution of the state of domicile of the grantee at the time of death. All
stock options shall be exercisable during the lifetime of the grantee only by
the grantee or the grantee's guardian or legal representative. These
restrictions on transferability shall not apply to the extent such restrictions
are not at the time required for the Plan to continue to meet the requirements
of Rule 16b-3 under the Securities Exchange Act of 1934 (the "1934 Act"), or any
successor Rule.
(E) If a grantee ceases to be a non-employee Director for any reason,
any outstanding stock options held by the grantee shall be exercisable according
to the following provisions:
(i) If a grantee ceases to be a non-employee Director for any
reason other than resignation, removal for cause or death, any outstanding stock
option held by such grantee shall be exercisable by the grantee (but only if
exercisable by the grantee immediately prior to ceasing to be a non-employee
Director) at any time prior to the expiration date of such stock option or
within three years after the date the grantee ceases to be a Director, whichever
is the shorter period;
(ii) If during his term of office as a Director a grantee resigns
as a non-employee Director or is removed from all of such office(s) for cause,
any outstanding stock option held by the grantee which is not exercisable by the
grantee immediately prior to resignation or removal shall terminate as of the
date of resignation or removal, and any outstanding stock option held by the
grantee which is exercisable by the grantee immediately prior to resignation or
removal shall be exercisable by the grantee at
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any time prior to the expiration date of such stock option or within three
months after the date of resignation or removal of the grantee, whichever is the
shorter period;
(iii) Following the death of a grantee during service as a
non-employee Director any outstanding stock option held by the grantee at the
time of death (whether or not exercisable by the grantee immediately prior to
death) shall be exercisable by the person entitled to do so under the will of
the grantee, or, if the grantee shall fail to make testamentary disposition of
the stock option or shall die intestate, by the legal representative of the
grantee at any time prior to the expiration date of such stock option or within
three years after the date of death of the grantee, whichever is the shorter
period;
(iv) Following the death of a grantee after ceasing to be a
non-employee Director and during a period when a stock option is exercisable
under clause (ii) above, the stock option shall be exercisable by such person
entitled to do so under the will of the grantee or by such legal representative
at any time prior to the expiration date of the stock option or within one year
after the date of death, whichever is the shorter period; and
(v) Following the death of a grantee after ceasing to be a
non-employee Director and during a period when a stock option is exercisable
under clause (iii) above, the stock option shall be exercisable by such person
entitled to do so under the will of the grantee of by such legal representative
at any time during the shorter of the following two periods: (i) until the
expiration date of the stock option or (ii) until three years after the grantee
ceased being a non-employee Director or one year after the date of death of the
grantee (whichever is longer).
A stock option held by a grantee who has ceased to be a non-employee
Director shall terminate upon the expiration of the applicable exercise period,
if any, specified in this Section 4(E).
(F) All stock options shall be confirmed by an agreement, or an
amendment thereto, which shall be executed on behalf of the Corporation by the
Chief Executive Officer (if other than the President), the President or any Vice
President and by the grantee.
(G) Fair market value of the Common Stock shall be the mean between the
following prices, as applicable, for the date as of which fair market value is
to be determined as quoted in The Wall Street Journal (or in such other reliable
publication as the
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Committee, in its discretion, may determine to rely upon): (i) if the Common
Stock is listed on the New York Stock Exchange, the highest and lowest sales
prices per share of the Common Stock as quoted in the NYSE-Composite
Transactions listing for such date, (ii) if the Common Stock is not listed on
such exchange, the highest and lowest sales prices per share of Common Stock for
such date on (or on any composite index including) the principal United States
securities exchange registered under the 1934 Act on which the Common Stock is
listed, or (iii) if the Common Stock is not listed on any such exchange, the
highest and lowest sales prices per share of the Common Stock for such date on
the National Association of Securities Dealers Automated Quotation System or any
successor system then in use ("NASDAQ"). If there are no such sale price
quotations for the date as of which fair market value is to be determined but
there are such sale price quotations within a reasonable period both before and
after such date, then fair market value shall be determined by taking a weighted
average of the means between the highest and lowest sales prices per share of
the Common Stock as so quoted on the nearest date before and the nearest date
after the date as of which fair market value is to be determined. The average
should be weighted inversely by the respective numbers of trading days between
the selling dates and the date as of which fair market value is to be
determined. If there are no such sale price quotations on or within a reasonable
period both before and after the date as of which fair market value is to be
determined, then fair market value of the Common Stock shall be the mean between
the bona fide bid and asked prices per share of Common Stock as so quoted for
such date on NASDAQ, or if none, the weighted average of the means between such
bona fide bid and asked prices on the nearest trading date before and the
nearest trading date after the date as of which fair market value is to be
determined, if both such dates are within a reasonable period. The average is to
be determined in the manner described above in this Section 4(G). If the fair
market value of the Common Stock cannot be determined on the basis previously
set forth in this Section 4(G) for the date as of which fair market value is to
be determined, the Committee shall in good faith determine the fair market value
of the Common Stock on such date. Fair market value shall be determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse.
(H) The obligation of the Corporation to issue shares of the Common
Stock under the Plan shall be subject to (i) the effectiveness of a registration
statement under the Securities Act of 1933, as amended, with respect to such
shares, if deemed necessary or appropriate by counsel for the Corporation, (ii)
the condition that the shares shall have been listed (or authorized for listing
upon official notice of issuance) upon each stock exchange, if any, on which the
Common Stock may then be listed
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and (iii) all other applicable laws, regulations, rules and orders which may
then be in effect.
Subject to the foregoing provisions of this Section 4 and the other
provisions of the Plan, any stock option granted under the Plan shall be subject
to such restrictions and other terms and conditions, if any, as shall be
determined, in its discretion, by the Committee and set forth in the agreement
referred to in Section 4(F), or an amendment thereto; except that in no event
shall the Committee or the Board have any power or authority which would cause
the Plan to fail to be a plan describe in Rule 16b-3(c)(2)(ii), or any successor
Rule.
SECTION 5
Adjustment and Substitution of Shares
If a dividend or other distribution shall be declared upon the Common
Stock payable in shares of Common Stock, the number of shares of the Common
Stock set forth in Section 3, the number of shares of the Common Stock then
subject to any outstanding stock options and the number of shares of the Common
Stock which may be issued under the Plan but are not then subject to outstanding
stock options on the date fixed for determining the stockholders entitled to
receive such stock dividend or distribution shall be adjusted by adding thereto
the number of shares of the Common Stock which would have been distributable
thereon if such shares had been outstanding on such date.
If the outstanding shares of the Common Stock shall be changed into or
exchangeable for a different number or kind of shares of stock or other
securities of the Corporation or another corporation, whether through
reorganization, reclassification, recapitalization, stock split-up, combination
of shares, merger or consolidation, then there shall be substituted for each
share of the Common Stock set forth in Section 3, for each share of the Common
Stock subject to any then outstanding stock option and for each share of the
Common Stock which may be issued under the Plan but which is not then subject to
any outstanding stock option, the number and kind of shares of stock or other
securities into which each outstanding share of the Common Stock shall be so
changed or for which each such share shall be exchangeable.
In case of any adjustment or substitution as provided for in the first
two paragraphs of this Section 5, the aggregate option price for all shares
subject to each then outstanding stock option prior to such adjustment or
substitution shall be the aggregate option price for all shares of stock or
other securities (including any fraction) to which such shares shall have been
adjusted or which shall have been substituted for such
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shares. Any new option price per share shall be carried to at least three
decimal places with the last decimal place rounded upwards to the nearest whole
number.
If the outstanding shares of the Common Stock shall be changed in value
by reason of any spin-off, split-off or split-up, or dividend in partial
liquidation, divided in property other than cash or extraordinary distribution
to holders of the Common Stock, the Committee shall make any adjustments to any
then outstanding stock option which it determines are equitably required to
prevent dilution or enlargement of the rights of grantees which would otherwise
result from any such transaction.
No adjustment or substitution provided for in this Section 5 shall
require the Corporation to issue or sell a fraction of a share or other
security. Accordingly, all fractional shares or other securities which result
from any such adjustment or substitution shall be eliminated and not carried
forward to any subsequent adjustment or substitution.
Except as provided in this Section 5, a grantee shall have no rights by
reason of any issue by the Corporation of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
SECTION 6
Effect of the Plan on the Rights of Corporation and Stockholder
Nothing in the Plan, in any stock option granted under the Plan, or in
any stock option agreement shall confer any right to any person to continue as a
Director of the Corporation or of Rockland or interfere in any way with the
rights of the stockholders of the Corporation or of Rockland or the Board or of
the Board of Directors of Rockland to elect and remove Directors.
SECTION 7
Amendment and Termination
The right to amend the Plan at any time and from time to time and the
right to terminate the Plan at any time are hereby specifically reserved to the
Board; provided always that no such termination shall terminate any outstanding
stock options granted under the Plan; and provided further that no amendment of
the Plan shall (i) be made without stockholder approval if stockholder approval
of the amendment is at the time required for stock options under the Plan to
qualify for the exemption from Section 16(b) of the 1934 Act provided by Rule
16b-3, or any
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successor Rule, or by the rules of any stock exchange on which the
Common Stock may then be listed, (ii) amend more than once every six months the
provisions of the Plan relating to the selection of the Directors to whom stock
options are to be granted, the timing of such grants, the number of shares
subject to any stock option, the exercise price of any stock option, the periods
during which any stock option may be exercised and the term of any stock option
other than to comport with changes in the Code or the rules and regulations
thereunder or (iii) otherwise amend the Plan in any manner that would cause
stock options under the Plan not to qualify for the exemption provided by Rule
16b-3, or any successor Rule. No amendment or termination of the Plan shall,
without the written consent of the holder of a stock option theretofore awarded
under the Plan, adversely affect the rights of such holder with respect thereto.
Notwithstanding anything contained in the preceding paragraph or any
other provision of the Plan or any stock option agreement, the Board shall have
the power to amend the Plan in any manner deemed necessary or advisable for
stock options granted under the Plan to qualify for the exemption provided by
Rule 16b-3 (or any successor rule relating to exemption from Section 16(b) of
the 1934 Act), and any such amendment shall, to the extent deemed necessary or
advisable by the Board, be applicable to any outstanding stock options
theretofore granted under the Plan notwithstanding any contrary provisions
contained in any stock option agreement. In the event of any such amendment to
the Plan, the holder of any stock option outstanding under the Plan shall, upon
request of the Committee and as a condition of the exercisability of such option
execute a conforming amendment in the form prescribed by the Committee to the
stock option agreement refereed to in Section 4(F) within such reasonable time
as the Committee shall specify in such request.
SECTION 8
Effective Date and Duration of Plan
The Plan shall become effective upon approval by the affirmative vote
of the holders of a majority of the Common Stock present in person or by proxy
and entitled to vote at a duly called and convened meeting of such holders. If
such approval is obtained at the Annual Meeting of Stockholders in 1996, the
Plan shall be effective on the date of such meeting, the first stock options
shall be granted on the third business day thereafter and the last stock options
granted under the Plan shall be granted on the third business day after the
Annual Meeting of Stockholders in 2005.
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