<PAGE> 1
Registration No. 333-______
Filed May 12, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Banknorth Group, Inc. (formerly Peoples Heritage Financial Group, Inc.)
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(Exact Name of Registrant as specified in its Articles of Incorporation)
Maine 01-0437984
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(State of incorporation) (IRS Employer Identification No.)
P.O. Box 9540
One Portland Square
Portland, Maine 04112-9540
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(Address of principal executive offices, including zip code)
Amended and Restated 1995 Stock Option Plan for Non-employee
Directors; Options to purchase Common Stock of the Registrant
issued by the Registrant pursuant to an
Agreement and Plan of Merger, dated as of June 1, 1999, as amended,
between the Registrant and Banknorth Group, Inc. ("Old
Banknorth")(the "Agreement"), upon conversion of
outstanding options to purchase Common Stock of Old Banknorth
issued by Old Banknorth under its 1997 Equity Compensation Plan,
its Comprehensive Long-Term Executive Incentive Plan, the
Amended and Restated 1995 Stock Incentive Plan of Evergreen Bancorp, Inc.
("Evergreen") and the 1995 Directors Stock Option Plan of Evergreen; and the
Amended and Restated 1994 Deferred Compensation Plan for Directors
and Selected Executives of Old Banknorth adopted by the
Registrant pursuant to the Agreement
- --------------------------------------------------------------------------------
(Full Titles of the Plans)
William J. Ryan Copies to:
Chairman, President and Gerard L. Hawkins, Esq.
Chief Executive Officer Elias, Matz, Tiernan & Herrick L.L.P.
Banknorth Group, Inc. 734 15th Street, N.W.
P.O. Box 9540 Washington, D.C. 20005
One Portland Square (202) 347-0300
Portland, Maine 04112-9540
(207) 761-8500
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(Name, address and telephone number of
agent for service)
Index to Exhibits is located on page 6
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of
Securities Amount Proposed Maximum Proposed Maximum
to be to be Offering Price Aggregate Amount of
Registered Registered(1)(2) Per Share Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 530,000(3) $13.469(6) $7,138,570(6) $ 1,884.58
par value $.01
Common Stock, 2,392,850(4) 12.796(7) 30,618,908(7) 8,083.39
par value $.01
Common Stock, 20,000(5) 13.469(6) 269,380(6) 71.12
par value $.01
Total 2,942,850 $38,026,858 $10,039.09
========= =========== ==========
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</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares of common stock, par value $.01 per
share ("Common Stock"), of Banknorth Group, Inc., a Maine corporation formerly
known as Peoples Heritage Financial Group, Inc. (the "Company" or "Registrant"),
registered hereby as a result of a stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
(2) Preferred stock purchase rights will be distributed without charge with
respect to each share of Common Stock of the Company registered hereby.
(3) Represents the additional shares of Common Stock of the Company reserved for
issuance pursuant to the Company's Amended and Restated 1995 Stock Option Plan
for Non-employee Directors ("1995 Plan") pursuant to an amendment to the 1995
Plan adopted in February 2000 and approved by stockholders of the Company at the
2000 Annual Meeting of Stockholders.
(4) Represents the number of shares of Common Stock of the Company reserved for
issuance as a result of the conversion of options to purchase common stock of
Banknorth Group, Inc., a Delaware Corporation ("Old Banknorth"), into options to
purchase Common Stock of the Company pursuant to an Agreement and Plan of
Merger, dated as of June 1, 1999, as amended, between the Company and Old
Banknorth (the "Agreement").
2
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(5) Represents the number of shares of Common Stock of the Company reserved for
issuance pursuant to the Old Banknorth Amended and Restated 1994 Deferred
Compensation Plan for Directors and Selected Executives (the "Deferred
Compensation Plan") adopted by the Company pursuant to the Agreement. In
addition, pursuant to Rule 416 (c) under the Securities Act of 1933, as amended
("Securities Act"), also includes an indeterminate amount of interests to be
offered or sold pursuant to the Deferred Compensation Plan.
(6) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(c) promulgated under the Securities
Act. The Proposed Maximum Offering Price Per Share is equal to the average of
the high and low sales prices of the Common Stock on May 8, 2000 as reported by
the Nasdaq Stock Market.
(7) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(h) promulgated under the Securities
Act. The Proposed Maximum Offering Price Per Share is equal to the weighted
average exercise price for the options, as converted, to purchase shares of
Common Stock.
--------------------------
This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. ss. 230.462.
3
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1999.
(b) All reports filed by the Company pursuant to Section 13
(a) or 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), since the end of the fiscal year covered by the
Form 10-K referred to in clause (a) above.
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form S-4 (File No.
333-95587) filed with the Commission on January 28, 2000.
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable because the Common Stock is registered under Section 12
of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
4
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 719 of the MBCA sets forth certain circumstances under which
directors, officers, employees and agents may be indemnified against liability
which they may incur in their capacity as such. Indemnification may be provided
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred; provided that no indemnification
may be provided with respect to any matter where such person shall have been
finally adjudicated (i) not to have acted honestly or in the reasonable belief
that such action was in or not opposed to the best interests of the corporation
or its shareholders, or (ii) with respect to any criminal action, to have had
reasonable cause to believe such conduct was unlawful. A corporation may not
indemnify a person with respect to any action or matter by or in the right of
the corporation as to which that person is finally adjudicated to be liable to
the corporation unless the court in which the action was brought determines
that, in view of all the circumstances, that person is fairly and reasonably
entitled to indemnity for such amounts as the court deems reasonable. To the
extent such person has been successful on the merits or otherwise in defense of
such action, that person shall be entitled to indemnification. Any
indemnification, unless ordered by a court or required in the corporation's
bylaws, shall be made only as authorized in the specific case upon a
determination by the board of directors that indemnification is proper in the
circumstances and in the best interests of the corporation. Expenses incurred in
defending an action may be paid by the corporation in advance of the final
disposition of that action upon a determination made that the person seeking
indemnification satisfied the standard of conduct required for indemnification
and receipt by the corporation of a written undertaking by or on behalf of such
person to repay that amount if that person is finally adjudicated to not have
met such standard or not be entitled to such indemnification. In addition,
Section 719 of the MBCA provides that a corporation may purchase and maintain
insurance on behalf of directors, officers, employees and agents against
liability whether or not the corporation would have the power to indemnify such
person against liability under such section. See Title 13-A Maine Revised
Statutes Annotated ss.719.
Article VI of the Bylaws of the Company provides that the directors,
officers, employees and agents of the Company shall be indemnified to the full
extent permitted by the MBCA. Such indemnity shall extend to expenses, including
attorney's fees, judgments, fines and amounts paid in the settlement,
prosecution or defense of the foregoing actions. Directors and officers also may
be indemnified pursuant to the terms of various employee benefit plans of the
Company. In addition, the Company carries a liability insurance policy for its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable because no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
5
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ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
<TABLE>
<CAPTION>
NO. EXHIBIT PAGE
--- ------- ----
<S> <C> <C>
4 Common Stock Certificate (1)
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
as to the legality of the securities E-1
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(contained in the opinion included as Exhibit 5) --
23.2 Consent of KPMG LLP E-3
24 Power of attorney for any subsequent amendments
(located in the signature pages of this
Registration Statement). -
99.1 Amended and Restated 1995 Stock Option Plan for E-4
Non-employee Directors
99.2 Banknorth Group, Inc. 1997 Equity Compensation Plan (2)
99.3 Banknorth Group, Inc. Comprehensive Long-Term
Executive Incentive Plan (3)
99.4 Amended and Restated 1995 Stock Incentive Plan
of Evergreen Bancorp, Inc. (4)
99.5 1995 Directors Stock Option Plan of Evergreen Bancorp, Inc. (5)
99.6 Amendment No. 1 to 1995 Directors Stock Option Plan of
Evergreen Bancorp, Inc. (4)
99.7 Banknorth Group, Inc. Amended and Restated 1994 Deferred
Compensation Plan for Directors and Selected Executives (6)
</TABLE>
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(1) Incorporated by reference from the Company's Registration
Statement on Form S-4 (File No. 333-95587) filed with the
Commission on January 28, 2000.
(2) Incorporated by reference from the Registration Statement on
Form S-3 (File No. 33-80273) filed by Banknorth Group, Inc. with
the Commission on December 11, 1995, as amended.
6
<PAGE> 7
(3) Incorporated by reference from the Registration Statement on
Form S-8 (File No. 333-38349) filed by Banknorth Group, Inc.,
with the Commission on October 21, 1997.
(4) Incorporated by reference from the Annual Report on Form 10-K
for the year ended December 31, 1997 filed by Evergreen Bancorp,
Inc. (File No. 0-10275) with the Commission on March 31, 1998.
(5) Incorporated by reference from the Registration Statement on
Form S-8 (File No. 333-50115) filed by Evergreen Bancorp, Inc.
with the Commission on April 15, 1998.
(6) Incorporated by reference from the Registration Statement on
Form S-8 (File No. 333-38353) filed by Banknorth Group, Inc.
with the Commission on October 21, 1997.
ITEM 9. UNDERTAKINGS.
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, (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement, and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses 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 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.
4. That, for the 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 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.
7
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5. 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
8
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland, State of Maine, on this 11th day of May
2000.
BANKNORTH GROUP, INC.
By: /s/ William J. Ryan
------------------------------------------
William J. Ryan, Chairman, President
and Chief Executive Officer
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. Each person whose signature appears below
hereby makes, constitutes and appoints William J. Ryan his or her true and
lawful attorney, with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of substitution any and
all amendments to this Registration Statement, hereby ratifying and confirming
such person's signature as it may be signed by said attorney to any and all
amendments.
/s/ Thomas J. Amidon May 5, 2000
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Thomas J. Amidon
Director
/s/ Gary G. Bahre May 5, 2000
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Gary G. Bahre
Director
/s/ P. Kevin Condron May 11, 2000
- ----------------------------------
P. Kevin Condron
Director
/s/ Susan C. Crampton May 8, 2000
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Susan C. Crampton
Director
/s/ George W. Dougan May 11, 2000
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George W. Dougan
Director
/s/ Katherine M. Greenleaf May 5, 2000
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Katherine M. Greenleaf
Director
9
<PAGE> 10
/s/ Luther F. Hackett May 11, 2000
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Luther F. Hackett
Director
/s/ Douglas S. Hatfield May 5, 2000
- ----------------------------------
Douglas S. Hatfield
Director
/s/ David D. Hindle May 8, 2000
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David D. Hindle
Director
/s/ Dana S. Levensen May 11, 2000
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Dana S. Levensen
Director
/s/ Philip A. Mason May 9, 2000
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Philip A. Mason
Director
/s/ John M. Naughton May 5, 2000
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John M. Naughton
Director
/s/ Malcolm W. Philbrook, Jr. May 5, 2000
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Malcolm W. Philbrook, Jr.
Director
- ----------------------------------
Angelo P. Pizzagalli
Director
/s/ Pamela Plumb May 11, 2000
- ----------------------------------
Pamela Plumb
Director
/s/ Seth A. Resnicoff May 8, 2000
- ----------------------------------
Seth A. Resnicoff
Director
/s/ William J. Ryan May 11, 2000
- ----------------------------------
William J. Ryan
Chairman, President and Chief
Executive Officer
(principal executive officer)
10
<PAGE> 11
/s/ Curtis M. Scribner May 8, 2000
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Curtis M. Scribner
Director
/s/ Paul R. Shea May 11, 2000
- ----------------------------------
Paul R. Shea
Director
/s/John E. Veasey May 11, 2000
- ----------------------------------
John E. Veasey
Director
/s/ Peter J. Verrill May 11, 2000
- ----------------------------------
Peter J. Verrill
Executive Vice President, Chief
Financial Officer and Treasurer
(principal financial and accounting officer)
/s/ Patrick E. Welch May 11, 2000
- ----------------------------------
Patrick E. Welch
Director
11
<PAGE> 1
EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor 734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
May 12, 2000
Board of Directors
Banknorth Group, Inc.
One Portland Square
P.O. Box 9540
Portland, Maine 04112-9540
Re: Registration Statement on Form S-8
2,942,580 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to Banknorth Group, Inc., a Maine
corporation (formerly Peoples Heritage Financial Group, Inc.) (the
"Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration Statement"),
relating to the registration of up to (i) 530,000 shares of common stock, par
value $.01 per share ("Common Stock"), to be issued upon exercise of options to
purchase Common Stock granted pursuant to the Corporation's Amended and Restated
1995 Stock Option Plan for Non-employee Directors (the "1995 Option Plan") in
connection with an amendment to the 1995 Plan adopted in February 2000 and
approval by stockholders of the Company in April 2000, (ii) 2,392,850 shares of
Common Stock to be issued upon exercise of options previously granted by
Banknorth Group, Inc., a Delaware corporation ("Old Banknorth") pursuant to its
1997 Equity Compensation Plan, its Comprehensive Long-Term Executive Incentive
Plan and the Amended and Restated 1995 Stock Incentive Plan and the 1995
Directors Stock Option Plan of Evergreen Bancorp, Inc. (the "Old Banknorth
Option Plans"), and converted into options to purchase Common Stock upon the
acquisition of Old Banknorth by the Corporation on May 10, 2000 pursuant to an
Agreement and Plan of Merger, dated as of June 1, 1999, as amended, between the
Corporation and Old Banknorth (the "Agreement")(the options under the 1995
Option Plan and the options under the Old Banknorth Option Plans are referred to
collectively as the "Options"), and (iii) 20,000 shares of Common Stock to be
issued pursuant to the Old Banknorth Amended and Restated 1994 Deferred
Compensation Plan for Directors and Selected Executives (the "Old Banknorth
Deferred Compensation Plan") adopted by the Corporation. The 1995 Option Plan,
the Old Banknorth Option Plans and the Old Banknorth Deferred Compensation Plan
are collectively referred to herein as the "Plans." The Registration Statement
also registers an indeterminate number of additional shares which may be
necessary to
<PAGE> 2
Board of Directors
May 12, 2000
Page 2
adjust the number of shares registered thereby for issuance as the result of a
stock split, stock dividend or similar adjustment of the outstanding Common
Stock. We have been requested to furnish an opinion to be included as an exhibit
to the Registration Statement.
In this regard, we have reviewed the Registration Statement and
Prospectuses for the Plans, the Articles of Incorporation and Bylaws of the
Corporation, the Plans, the Agreement, a specimen stock certificate evidencing
the Common Stock of the Corporation and such other corporate records and
documents as we have deemed appropriate for the purposes of this opinion. We are
relying upon the originals, or copies certified or otherwise identified to our
satisfaction, of the corporate records of the Corporation and such other
instruments, certificates and representations of public officials, officers and
representatives of the Corporation as we have deemed applicable or relevant as a
basis for the opinions set forth below. In addition, we have assumed, without
independent verification, the genuineness of all signatures and the authenticity
of all documents furnished to us and the conformance in all respects of copies
to originals. Furthermore, we have made such factual inquiries and reviewed such
laws as we determined to be relevant for the purposes of this opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to the exercise of the Options will continue
to be validly authorized on the dates the Common Stock is issued pursuant to the
exercise of the Options; (ii) on the dates the Options are exercised, the
Options will constitute valid, legal and binding obligations of the Corporation
and will (subject to applicable bankruptcy, moratorium, insolvency,
reorganization and other laws and legal principles affecting the enforceability
of creditors' rights generally) be enforceable as to the Corporation in
accordance with their terms; (iii) no change occurs in applicable law or the
pertinent facts; and (iv) the provisions of "blue sky" and other securities laws
as may be applicable have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock to be issued pursuant to the Plans, upon receipt by the Corporation of the
consideration required thereby, will be legally issued, fully paid and
non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Gerard L. Hawkins
--------------------------------------
Gerard L. Hawkins, a Partner
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Banknorth Group, Inc. of our report, dated January 18, 2000,
incorporated by reference in the December 31, 1999 Annual Report on Form 10-K of
Peoples Heritage Financial Group, Inc.
/s/ KPMG LLP
Boston, Massachusetts
May 10, 2000
<PAGE> 1
EXHIBIT 99.1
AMENDED AND RESTATED
PEOPLES HERITAGE FINANCIAL GROUP, INC.
1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE I - PURPOSES
The purposes of this Amended and Restated Peoples Heritage Financial
Group, Inc. 1995 Stock Option Plan for Non-Employee Directors (the "Plan") are
to attract and retain the services of experienced and knowledgeable non-employee
directors of Peoples Heritage Financial Group, Inc. (the "Company") and each
subsidiary of the Company as may be designated by the Board of Directors of the
Company (the "Board") or a duly authorized committee thereof to participate in
the Plan (each a "Subsidiary" and collectively, the "Subsidiaries") and to
provide an incentive for such non-employee directors of the Company and any such
participating Subsidiaries to increase their proprietary interests in the
Company's long-term success and progress.
ARTICLE II - SHARES SUBJECT TO THE PLAN
Subject to adjustment in accordance with Article VI hereof, the total
number of shares of the Company's Common Stock, $.01 par value per share (the
"Common Stock"), which may be issued upon exercise of options which may be
granted hereunder is 1,060,000 (the "Shares"). The Shares issued upon exercise
of options granted hereunder (each on "Option" and collectively, "Options") may,
at the discretion of the Board, be shares presently authorized but unissued
and/or shares subsequently acquired by the Company in public or private
transactions. If any Option granted under this Plan expires or terminates
without being exercised in full, the Shares subject to the unexercised portion
shall be available for reissuance under the Plan.
ARTICLE III - ADMINISTRATION OF THE PLAN
The administrator of this Plan (the "Plan Administrator") shall be the
Board or a duly authorized committee thereof consisting solely of two or more
Non-Employee Directors, as defined in Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The Plan Administrator shall have
the power to make determinations regarding awards to non-employee Directors of
the Company and participating Subsidiaries under this Plan, to determine
participating Subsidiaries under this Plan, to construe the provisions of this
Plan, to determine all questions arising under this Plan and to adopt and amend
such rules and regulations for the administration of this Plan as it may deem
desirable, subject to Article IX of this Plan.
ARTICLE IV - OPTION GRANTS
Each Director of the Company and each Director of a participating
Subsidiary who in each case is not an employee of the Company or any parent or
Subsidiary of the Company shall be eligible to receive an option to purchase
Shares under this Plan. Options may be granted to such persons under this Plan
at such times and in such amounts as may be determined by the Plan
Administrator. Options granted to Directors of the Company or a participating
Subsidiary ("Optionees") shall be vested and exercisable according to the terms
of Article V below.
<PAGE> 2
ARTICLE V - OPTION TERMS
5.1 OPTION AGREEMENT. The Plan Administrator shall promptly notify
each Director of the Company or a participating Subsidiary of each Option
granted to that Director. Each Option granted under this Plan shall be evidenced
by an option agreement (an "Agreement") duly executed on behalf of the Company
and by the Optionee. Each Agreement shall comply with and be subject to the
terms and conditions of this Plan and may contain such other terms, provisions
and conditions not inconsistent with this Plan as may be determined by the Plan
Administrator.
5.2 OPTION EXERCISE PRICE. The exercise price per share for an
Option shall be the fair market value per share of Common Stock on the date of
grant. For purposes of the Plan, "fair market value" shall be the per share
closing sale price of the Common Stock on the date in question on the principal
United States securities exchange registered under the Exchange Act on which the
Common Stock is listed or, if the Common Stock is not listed on any such
exchange, the per share closing sale price of a share of Common Stock on the
Nasdaq Stock Market's National Market or any other such system then in use, or
if no quotations are available, the most recent average of the closing bid and
asked prices per share for the Common Stock in the over-the-counter market.
5.3 TERM OF OPTIONS. Each Option shall have a term which extends
from the date of grant through the tenth anniversary of the date of grant (the
"Termination Date"), provided that in the event that an Optionee ceases to be a
Director of the Company or a participating Subsidiary for any reason, the
unexercised portion of any Option held by such Optionee shall expire as of the
earlier of the Termination Date of the Option or the first anniversary of the
day the Optionee ceases to be a Director of the Company or a participating
Subsidiary.
5.4 EXERCISABILITY OF OPTION. An Option shall be exercisable on the
date of grant and thereafter shall remain exercisable throughout its term,
subject to earlier termination as provided in Section 5.3 hereof. During the
period it is exercisable, as described immediately above, an Option may be
exercised in whole or in part on any business day or days chosen by the
Optionee, provided, however, that only whole Shares shall be issued pursuant to
the exercise of an Option.
5.5 MANNER OF EXERCISE. An Option shall be exercised by giving
written notice, signed by the person exercising the Option, to the Company
stating the number of Shares with respect to which the Option is being
exercised, accompanied by payment in full for such Shares, which payment may be
in whole or in part (i) in cash or by check or (ii) by delivery of a properly
executed exercise notice, together with irrevocable instructions to a broker
directing the broker to sell the Shares and then to properly deliver to the
Company the amount of sale or loan proceeds to pay the exercise price, all in
accordance with applicable laws and regulations.
2
<PAGE> 3
5.6 TRANSFERABILITY. Except as may be approved by the Plan
Administrator, an Option shall not be sold, transferred, assigned, pledged,
hypothecated, attached, executed upon or otherwise disposed of in whole or in
part in any way other than by will or the laws of descent and distribution or as
specifically provided herein. The transfer by an Optionee to a trust created by
the Optionee for the benefit of the Optionee or the Optionee's family which is
revocable at any and all times during the Optionee's lifetime by the Optionee
and as to which the Optionee is the sole trustee during his or her lifetime will
not be deemed to be a transfer for purposes of the Plan. Under such rules and
regulations as the Plan Administrator may establish pursuant to the terms of the
Plan, a beneficiary may be designated with respect to an Option in the event of
the death of an Optionee. If the estate of the Optionee is the beneficiary with
respect to an Option, any rights with respect to such Option may be transferred
to the person or persons or entity (including a trust) entitled thereto under
the will of such Optionee or pursuant to the laws of descent and distribution.
5.7 NO SPECIAL RIGHTS. The Optionee or the Optionee's
successor-in-interest shall have no rights as a stockholder with respect to any
Shares which may be purchased by exercise of an Option unless and until a
certificate representing such Shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
5.8 LIMITATION AS TO DIRECTORSHIP. Neither this Plan, the granting
of an Option hereunder nor any other action taken pursuant hereto shall
constitute or be evidence of any agreement or understanding, express or implied,
that an Optionee has a right to continue as a Director of the Company or a
Subsidiary of the Company for any period of time.
5.9 COMPLIANCE WITH LAWS AND REGULATIONS. All Options granted
hereunder shall be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any government or regulatory agency as may
be required. The Company shall not be required to issue any certificates for any
Shares upon the exercise of an Option granted under this Plan, or record as a
holder of record of Shares the name of the individual exercising an Option under
this Plan, prior to completion of any registration or qualification or obtaining
of consents or approvals with respect to such shares under any federal or state
law or any rule or regulation of any governmental or regulatory body, which the
Company shall, in its sole discretion, determine to be necessary or advisable.
Moreover, no Option may be exercised if such exercise or issuance would be
contrary to applicable laws and regulations.
5.10 WITHHOLDING OF TAXES. The Company may make such provisions as it
deems appropriate for the withholding by the Company pursuant to federal or
state income tax laws of such amounts as the Company determines it is required
to withhold in connection with any Option. The Company may require an Optionee
to satisfy any relevant tax requirements before authorizing any issuance of
Shares to such Optionee or payment of any other benefit hereunder to such
Optionee.
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Any such settlement shall be made in the form of cash, check or such other form
of consideration as is satisfactory to the Board of Directors, including without
limitation Shares acquired upon exercise of an Option.
ARTICLE VI - CAPITAL ADJUSTMENTS
In the event that the Plan Administrator determines that any dividend or
other distribution (whether in the form of cash, Shares, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company,
or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Plan Administrator to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under this Plan, then the Plan Administrator shall, in such
manner as it may deem equitable, adjust any or all of the aggregate number and
class of Shares for which Options may be granted under this Plan, the number and
class of Shares covered by each outstanding Option under this Plan and the
exercise price per Share of each such outstanding Option. In the event of any
adjustment in the number of Shares covered by any Option, any fractional Shares
resulting from such adjustment shall be disregarded and each such Option shall
cover only the number of full Shares resulting from such adjustment.
ARTICLE VII - EXPENSES OF THE PLAN
All costs and expenses related to the adoption and administration of
this Plan shall be borne by the Company and none of such expenses shall be
charged to any Optionee.
ARTICLE VIII - EFFECTIVE DATE AND DURATION OF THE PLAN
This Plan initially became effective upon adoption by the Board and
stockholders of the Company in 1995. The amendments to this Plan increasing the
total number of shares of Common Stock which may be issued upon exercise of
Options granted hereunder from 530,000 to 1,060,000 and otherwise amending and
restating this Plan became effective upon adoption by the Board on February 22,
2000, subject to approval of the Company's stockholders at or before the next
annual meeting of stockholders of the Company. In the event of such approval,
this Plan shall continue in effect until it is terminated by action of the
Board.
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ARTICLES IX - TERMINATION AND AMENDMENT OF THE PLAN
Subject to any approval of the Company's stockholders required under
applicable law, the Board may amend, terminate or suspend this Plan at any time,
in its sole and absolute discretion, provided that no such action shall
adversely affect any then-outstanding Options.
ARTICLE X - MISCELLANEOUS
10.1 OTHER PLANS. Nothing in this Plan is intended to be a substitute
for, or shall preclude or limit the establishment or continuation of, any other
plan, practice or arrangement for the payment of compensation or benefits to
directors generally, which the Company or a Subsidiary now has or may hereafter
lawfully put into effect, including, without limitation, any retirement,
pension, insurance, stock purchase, incentive compensation or bonus plan.
10.2 SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender, as the context may require.
10.3 APPLICABLE LAW. This Plan shall be governed by, interpreted
under, and construed and enforced in accordance with the internal laws of the
State of Maine.
10.4 SUCCESSORS AND ASSIGNS. This Plan and any Agreement with respect
to an Option shall be binding upon the successors and assigns of the Company and
upon each Optionee and such Optionee's heirs, executors, administrators,
personal representatives, permitted assignees and successors in interest.
Adopted by the Board of Directors of the Company on January 24, 1995 and amended
and restated by such Board of Directors on January 28, 1997 and on February 22,
2000.
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