<PAGE>
As filed with the Securities and Exchange Commission on ___________, 2000
Registration Statement No. 333-10063
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
Amendment No. 1 to
Form S-8
Registration Statement
Under
The Securities Act of 1933
--------------------------------------
IROQUOIS BANCORP, INC.
(Exact name of registrant as specified in its charter)
NEW YORK
(State or other jurisdiction of incorporation or organization)
16-1351101
(IRS Employer Identification No.)
115 Genesee Street
Auburn, New York 13021
(Address, including zip code, of principal executive offices)
1996 Stock Option Plan
(Full title of the plan)
--------------------------------------
Kathleen A. Manley, Secretary
Iroquois Bancorp, Inc.
115 Genesee Street
Auburn, New York 13021
(315) 252-9521
(Name, address, and telephone number, including area code, of agent for service)
--------------------------------------
with a copy to:
Linda Oldfield, Esq.
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, New York 14604
(716) 232-4440
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
By way of this Amendment No. 1 to the Registration Statement, the
Registrant is post-effectively amending Form S-8 filed August 13, 1996,
Registration Statement No. 333-10063, which is incorporated herein by reference,
to provide that the exercise price of Incentive Stock Options to be issued under
the Plan may be paid by transfer to the Registrant of shares of common stock of
the Registrant.
This Amendment No. 1 to the Registration Statement will automatically
become effective upon filing with the Securities and Exchange Commission.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
1. The Registrant's latest annual report filed pursuant to Section
13(a) of the Securities Exchange Act of 1934 that contains audited financial
statements for the Registrant's fiscal year ended December 31, 1998.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 31, 1998.
The description of the Registrant's common stock contained in its
registration statement filed by the Registrant under Section 12 of the
Securities Exchange Act of 1934, including any amendment or any 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 Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all of the shares of common stock offered pursuant to this
Registration Statement have been sold or which deregisters all of such shares
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 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 6. Indemnification of Directors and Officers.
Under the New York Business Corporation Law, Iroquois may extend
indemnification to directors and officers beyond that provided by law to include
any indemnification pursuant to agreements, resolutions of the board of
directors, resolutions of the shareholders, bylaws, or provisions of the
Certificate of Incorporation provided the Bylaws or Certificate of Incorporation
of Iroquois expressly permits such broad indemnification. The Bylaws of
Iroquois do contain appropriate provisions to enable Iroquois to indemnify its
directors and officers to the broadest extent possible. The Bylaws of Iroquois
require the Corporation to indemnify its directors and officers to the fullest
extent authorized by law and further to the extent permitted by applicable law,
pursuant to a resolution of the shareholders or directors, an agreement for
indemnification, any bylaw, any other law or otherwise. In addition to
indemnification, any such indemnified person shall be entitled to the payment
for expenses incurred in defending any legal action or proceeding in advance of
a final decision on the merits. The statutory provisions applicable to
indemnification, however, prohibit any such indemnification, by law or
otherwise, to a director or officer if a final adjudication establishes that the
acts of the director or officer were committed in bad faith, were a result of
active and deliberate dishonesty and were material, or that the director or
officer derived a personal gain to which the person was not entitled.
The statutory authority regarding indemnification applicable to directors
and officers contains no reference to indemnification of employees, which is
left to the discretion of the corporation, and the Bylaws of Iroquois authorize
indemnification of employees and other personnel to the fullest extent permitted
by law. The Bylaws do not, however, require such indemnification.
The Bylaws of Iroquois further authorize the directors to purchase, in the
board's discretion, liability insurance for the indemnification of directors,
officers or employees. Accordingly, as authorized by the New York State
Business Corporation Law and the Bylaws, Iroquois has obtained insurance from
Executive Risk Indemnity, Inc.of Simsbury, Connecticut, insuring Iroquois and
its subsidiaries against any obligation that occurs as a result of its
indemnification of directors, officers, or other employees, and insuring such
persons for liabilities for which they may not be indemnified by Iroquois.
Insofar as indemnification of or liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling
Iroquois, Iroquois has been informed that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act of 1933 and is therefore unenforceable.
2
<PAGE>
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration Statement:
*5. Opinion and consent of Harris Beach & Wilcox, LLP.
*23.1 Consent of KPMG Peat Marwick LLP, independent accountants.
*23.3 Consent of Harris Beach & Wilcox, LLP, included in their
opinion filed as Exhibit 5.
24 Power of Attorney, included at pages II-4 and II-5.
99 Iroquois Bancorp, Inc. Amended and Restated 1996 Stock Option
Plan.
- -------------------
* Previously filed as an Exhibit to this Registration Statement on
August 13, 1996.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Auburn, State of New York, on this 3rd
---
day of February, 2000.
--------------
IROQUOIS BANCORP, INC.
By: /s/Richard D. Callahan
--------------------------------------------
Richard D. Callahan
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Marianne R. O'Connor his true and lawful
attorney-in-fact and agent with full power of substitution, 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 all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and 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 attorney-in-fact and
agent, or her substitute, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney have been signed below by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
----- ----
<S> <C> <C>
/s/Joseph P. Ganey Chairman of the Board February 3, 2000
- -----------------------------------------
Joseph P. Ganey
/s/Richard D. Callahan President, Chief Executive February 3, 2000
- ----------------------------------------- Officer and Director
Richard D. Callahan
/s/Marianne R. O'Connor Treasurer and February 3, 2000
- ----------------------------------------- Chief Financial Officer
Marianne R. O'Connor
</TABLE>
4
<PAGE>
<TABLE>
<S> <C> <C>
/s/Brian D. Baird Director February 3, 2000
- ---------------------------------------
Brian D. Baird
/s/John Bisgrove, Jr. Director February 3, 2000
- ---------------------------------------
John Bisgrove, Jr.
/s/Peter J. Emerson Director February 3, 2000
- ---------------------------------------
Peter J. Emerson
Director February , 2000
- ---------------------------------------
Arthur A. Karpinski
/s/Henry D. Morehouse Director February 3, 2000
- ---------------------------------------
Henry D. Morehouse
/s/Edward D. Peterson Director February 3, 2000
- ---------------------------------------
Edward D. Peterson
/s/Lewis E. Springer, II Director February 3, 2000
- ---------------------------------------
Lewis E. Springer, II
</TABLE>
5
<PAGE>
EXHIBIT INDEX
*5 Opinion and consent of Harris Beach & Wilcox, LLP.
*23.1 Consent of KPMG Peat Marwick LLP, independent accountants.
*23.2 Consent of Harris Beach & Wilcox, LLP, included in their
opinion filed as Exhibit 5.
24 Power of Attorney, included at pages II-4 and II-5.
99 Iroquois Bancorp, Inc. Amended and Restated 1996 Stock Option
Plan.
- -------------------------------
* Previously filed as an Exhibit to this Registration Statement on
August 13, 1996.
<PAGE>
Exhibit 99
----------
IROQUOIS BANCORP, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
1. Introduction and Statement of Purpose
This Amended and Restated 1996 Stock Option Plan (the "Plan") is intended to
encourage stock ownership by selected officers and employees of Iroquois
Bancorp, Inc. (the "Company"), a New York corporation registered as a state bank
holding company under the New York State Banking Law and as a federal thrift
holding company under the Home Owners' Loan Act of 1933, as amended, and to
selected officers and employees of the Company's subsidiaries, Cayuga Savings
Bank, a New York State chartered savings bank, The Homestead Savings (FA), a
federally chartered savings association and such other entities as may become a
subsidiary of the Company while this Plan remains in effect (collectively, the
"Subsidiaries" and individually, a "Subsidiary"). The Plan is designed to
promote the Company's interests by increasing the proprietary interest in the
Company of officers and key employees of the Company and Subsidiaries on whose
judgment and performance the success of the Company largely depends. The Plan is
also designed to attract and retain persons of experience and ability to serve
as officers and employees of the Company and Subsidiaries.
Options granted under this Plan may be either Incentive Stock Options (as
hereinafter defined and provided for in Section 5(a) of this Plan) or
Nonstatutory Stock Options (as hereinafter defined and provided for in Section
5(b) of this Plan), as shall be determined in each specific case by a duly
appointed committee of the Board of Directors of the Company (the "Committee")
as hereinafter provided. As used in this Plan, the term "Option" shall refer to
either Incentive Stock Options or Nonstatutory Stock Options, or both.
2. Administration
(a) Subject to the express provisions of this Plan, the Committee shall
have plenary authority, in its sole discretion:
(i) To determine the time or times at which, and the officers
and employees of the Company and Subsidiaries to whom options shall be granted
under this Plan;
(ii) To determine, as the case may be, the Incentive Stock
Option Price or Nonstatutory Stock Option Price (both as defined herein) of, and
the number of shares of Stock (as defined herein) to be covered by, options
granted under this Plan;
(iii) To determine the time or times at which each option
granted under this Plan may be exercised, including whether an option may be
exercised in whole or in installments;
(iv) To interpret this Plan and to prescribe, amend and rescind
rules and regulations relating to it; and
(v) To make all other determinations which the Committee shall
deem necessary or advisable for the administration of this Plan.
1
<PAGE>
(b) The membership of the Committee shall at all times consist of not
less than 2 members of the Board of Directors of the Company (the "Board of
Directors"), each of whom shall be a "Disinterested Person" as defined in
Section 2(d) hereinafter. The Committee shall have all of the powers and duties
set forth herein, as well as such additional powers and duties as the Board of
Directors may delegate to it; provided, however, that the Board of Directors
expressly retains the right (i) to appoint the members of the Committee, and
(ii) to terminate or amend this Plan consistent with provisions of applicable
law. The Board of Directors may from time to time appoint members of the
Committee in substitution for or in addition to members previously appointed,
may fill vacancies in the Committee, however caused, and may discharge the
Committee. Duly authorized actions of the Committee shall constitute actions of
the Board of Directors for the purposes of this Plan and the administration
thereof.
(c) Notwithstanding anything herein to the contrary, no employee,
officer or director of the Company shall, as a member of the Committee or
otherwise, have any vote with regard to the grant of any option to such
employee, officer or director, including, but not limited to:
(i) The time at which any such option shall be granted;
(ii) The number of shares of Stock covered by any such option;
(iii) The time or times at which, or the period during which, any
such option may be exercised or whether it may be exercised in whole or in
installments;
(iv) The provisions of the agreement relating to any such
option; and
(v) The Incentive Stock Option Price of Stock subject to an
Incentive Stock Option granted to such person, or the Nonstatutory Stock Option
Price of Stock subject to a Nonstatutory Stock Option granted to such person.
(d) The term "Disinterested Person" as used in Section 2(b) of this Plan
shall mean a person who, at the time the person exercises discretion with
respect to the administration of this Plan, has not during the preceding year
received any discretionary grant of equity securities of the Company and
otherwise satisfies the qualifications of a "Disinterested Person" within the
meaning of the Securities and Exchange Commission's rules and regulations.
3. Stock Subject to the Plan
Subject to adjustment as provided in Section 10 of this Plan, the maximum
number of shares which may be made subject to options, or which may be issued
upon the exercise of options granted under this Plan, shall be 230,000 shares of
the common stock of the Company (the "Stock"). The shares of Stock reserved for
issuance pursuant to this Plan shall consist of authorized but previously
unissued shares of Stock. Alternatively, the Committee may use Treasury shares
of Stock, in which case the number of authorized but unissued shares held in
reserve shall be reduced accordingly.
Except as otherwise provided in Section 10 of this Plan, if an option
granted under this Plan expires, terminates or is canceled for any reason
without having been exercised in full, the shares of Stock allocable to the
unexercised portion of such option may again be made subject to an option or
2
<PAGE>
options granted under this Plan.
4. Eligibility
Options may be granted under this Plan to such officers and regular full-
time employees of the Company and Subsidiaries as may be selected in the manner
provided in Section 2 of this Plan. A director of the Company or a Subsidiary
who is not also a regular full-time employee of the Company or a Subsidiary
shall not be eligible to receive any options under this Plan. A person granted
an option under this Plan shall nevertheless remain eligible to receive one or
more additional options thereafter, notwithstanding that options previously
granted to such person remain unexercised in whole or in part.
5. Terms of Options
This Plan is intended to authorize the Committee to grant, in its
discretion, options that qualify as incentive stock options pursuant to Section
422 of the Internal Revenue Code of 1986, as amended (the "Code") (such
qualifying options being referred to herein as "Incentive Stock Options") or
options that do not so qualify (such nonqualifying options being referred to
herein as "Nonstatutory Stock Options"). Each option granted under this Plan
shall be evidenced by a written option agreement which shall be executed and
delivered as provided in Section 12 of this Plan and which shall specify whether
the option granted therein is an Incentive Stock Option or a Nonstatutory Stock
Option.
(a) Terms of Incentive Stock Options. Each stock option agreement
covering an Incentive Stock Option granted under this Plan and any amendment
thereof shall conform to the provisions of Section 5(a)(i)-(iii) below, and may
contain such other terms and provisions consistent with the requirements of this
Plan as the Committee shall deem appropriate:
(i) Incentive Stock Option Price. Except as otherwise
----------------------------
specifically provided in Section 8, the purchase price of each share of Stock
subject to an Incentive Stock Option (the "Incentive Stock Option Price") shall
be a stated price which is not less than 100% of the fair market value of such
share of Stock, determined in accordance with Section 8 of this Plan, as of the
date such Incentive Stock Option is granted; provided, however, that if an
employee, at the time an Incentive Stock Option is granted, owns stock
representing more than 10% of the total combined voting power of all classes of
stock of the Company, (or, under Section 425(d) of the Code, is deemed to own
stock representing more than 10% of the total combined voting power of all such
classes of stock, directly or indirectly, by or for any brother, sister, spouse,
ancestor, or lineal descendant of such employee, or by or for any corporation,
partnership, estate or trust of which such employee is a shareholder, partner or
beneficiary), then the Incentive Stock Option Price of each share of Stock
subject to such Incentive Stock Option shall be at least equal to 110% of the
fair market value of such share of Stock, as determined in the manner stated
above.
(ii) Term of Incentive Stock Options. Incentive Stock Options
-------------------------------
granted under this Plan shall be exercisable for such periods as shall be
determined by the Committee at the time of grant of each such Incentive Stock
Option, but in no event shall an Incentive Stock Option be exercisable after the
expiration of 10 years from the date of grant; provided, however, that an
Incentive Stock Option granted to any employee who owns or is deemed to own
stock representing more than 10% of the total combined voting power of all
classes of Stock under Section 425(d) of the Code pursuant to Section 5(a)(i)
above, shall not be exercisable after the expiration of 5 years from the date
3
<PAGE>
of grant. Each Incentive Stock Option granted under this Plan shall also be
subject to earlier termination as provided in this Plan.
(iii) Exercise of Incentive Stock Options.
-----------------------------------
(A) Subject to the provisions of Sections 5(a) (iii)
(F) and 10 of this Plan, Incentive Stock Options granted under this Plan may be
exercised in whole or in installments, to such extent, and at such time or times
during the terms thereof, as shall be determined by the Committee at the time of
grant of each such option.
(B) Incentive Stock Options granted under this Plan
shall be exercisable only by delivery to the Company of written notice of
exercise, which notice shall state the number of shares with respect to which
such Incentive Stock Option is exercised, the date of grant of the Incentive
Stock Option, the aggregate purchase price for the shares with respect to which
the Incentive Stock Option is exercised and the effective date of such exercise,
which date shall not be earlier than the date the notice is received by the
Company nor later than the date upon which such Incentive Stock Option expires.
The written notice of exercise shall be sent together with the full Incentive
Stock Option Price of the shares purchased, which must be paid in full either
(x) in United States dollars by cash, certified check, bank draft or money order
payable to the order of the Company, or (y) by transfer to the Company of shares
of common stock of the Company. In the event such Incentive Stock Option Price
is paid in whole or in part with shares of the Company common stock, the portion
of the Incentive Stock Option Price so paid shall be equal to the value, as of
the date of exercise of the Incentive Stock Option, of such shares being
transferred. The value of such shares shall determined by the closing price of
the Company common shares as reported on the Nasdaq Stock Market on the day
coincident with the date of exercise of such Incentive Stock Option (or the
immediately preceding trading day if the date of exercise is not a trading day).
(C) Except as expressly provided to the contrary in
Section 9 of this Plan, an Incentive Stock Option granted hereunder shall remain
outstanding and shall be exercisable only so long as the person to whom such
Incentive Stock Option was granted remains an officer or employee of the
Company.
(b) Terms of Nonstatutory Stock Options. Each Stock Option
-----------------------------------
agreement covering a Nonstatutory Stock Option granted under this Plan and any
amendment thereof shall conform to the provisions of Section 5(b)(i)-(iii),
below, and may contain such other terms and provisions consistent with the
requirements of this Plan as the Committee shall deem appropriate:
(i) Nonstatutory Stock Option Price. Except as
-------------------------------
otherwise specifically provided in Section 8, the purchase price of each share
of Stock subject to a Nonstatutory Stock Option (the "Nonstatutory Stock Option
Price") shall be a stated price which is not less than 100% of the fair market
value of such share of Stock, determined in accordance with Section 8 of this
Plan, as of the date the Nonstatutory Stock Option is granted.
(ii) Term of Nonstatutory Stock Options. Nonstatutory
----------------------------------
Stock Options granted under this Plan shall be exercisable for such periods as
shall be determined by the Committee at the time of grant of each such
Nonstatutory Stock Option, but in no event shall a Nonstatutory Stock Option be
exercisable after the expiration of 10 years from the date of grant. Each
Nonstatutory Stock Option granted under this Plan shall also be subject to
earlier termination as provided in this Plan.
4
<PAGE>
(iii) Exercise of Nonstatutory Stock Options.
--------------------------------------
(A) Subject to the provisions of Sections
5(b)(iii)(E) and 10 of this Plan, Nonstatutory Stock Options granted under this
Plan may be exercised in whole or in installments, to such extent, and at such
time or times during the terms thereof, as shall be determined by the Committee
at the time of grant of each such option.
(B) Nonstatutory Stock Options granted under this
Plan shall be exercisable only by delivery to the Company of written notice of
exercise, which notice shall state the number of shares with respect to which
such Nonstatutory Stock Option is exercised, the date of grant of the
Nonstatutory Stock Option, the aggregate purchase price for the shares with
respect to which the Nonstatutory Stock Option is exercised and the effective
date of such exercise, which date shall not be earlier than the date the notice
is received by the Company nor later than the date upon which such Nonstatutory
Stock Option expires. The written notice of exercise shall be sent together with
the full Nonstatutory Stock Option Price of the shares purchased, which must be
paid either (x) in full in United States dollars by cash, certified check, bank
draft or money order payable to the order of the Company, or (y) by transfer to
the Company of shares of common stock of the Company. In the event such
Nonstatutory Stock Option Price is paid in whole or in part with shares of the
Company common stock, the portion of the Nonstatutory Stock Option Price so paid
shall be equal to the value, as of the date of exercise of the Nonstatutory
Stock Option, of such shares being transferred. The value of such shares shall
determined by the closing price of the Company common shares as reported on the
Nasdaq Stock Market on the day coincident with the date of exercise of such
Nonstatutory Stock Option (or the immediately preceding trading day if the date
of exercise is not a trading day).
(C) Except as expressly provided to the contrary in
Section 9 of this Plan, a Nonstatutory Stock Option granted hereunder shall
remain outstanding and shall be exercisable only so long as the person to whom
such Nonstatutory Stock Option was granted remains an officer or employee of the
Company or a Subsidiary.
6. Limitation on Grant of Incentive Stock Options
The aggregate fair market value of the Company's Stock (determined under
Section 8 hereof at the time of the grant of any option) with respect to which
Incentive Stock Options are first exercisable by any person holding an option
during any calendar year (under all stock option plans of the Company) shall not
exceed $100,000.00.
7. Rights of Optionees; Transferability
No holder of an option shall be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares of Stock subject to such
option unless and until the option shall have been exercised pursuant to the
terms thereof, the Company shall have issued and delivered to the holder of the
option certificates representing the shares of Stock as to which the option has
been exercised, and the name of the holder shall have been entered as a
shareholder of record on the books of the Company, or its transfer agent.
Thereupon, such person shall have full voting and other ownership rights with
respect to such shares of Stock.
All Incentive Stock Options and Nonstatutory Stock Options granted under
this Plan
5
<PAGE>
shall be nontransferable, except by will or the laws of descent and
distribution, and shall be exercisable during the lifetime of the person to whom
granted only by such person (or such person's duly appointed, qualified, and
acting personal representative).
8. Determination of Fair Market Value
For the purposes of this Plan, the fair market value of a share of Stock of
the Company shall be, unless otherwise prescribed by the Code and Regulations
thereunder, the average of the closing sale prices of the Stock as traded on The
Nasdaq Stock Market and reported in Nasdaq National Market listings on each of
the 5 trading days prior to the date on which such determination is made.
9. Retirement, Termination of Employment or Death of Holders of
Options
(a) Retirement. If a person to whom an option has been granted under
this Plan retires from employment with the Company and/or Subsidiary on the
"Normal Retirement Date" or as a result of "Disability" (both as defined for
purposes of the Iroquois Bancorp, Inc. Money Purchase Pension Plan as in effect
on the date of adoption of this Plan by the Board of Directors), such option
shall continue to be exercisable in whole or in part to the extent exercisable
on the date of retirement, and, to the extent not theretofore exercised, by the
person to whom granted (or such person's duly appointed, qualified, and acting
personal representative) in the manner set forth in Section 5 of this Plan, at
any time within the remaining term of such option unless otherwise determined by
the Committee at the time of grant, provided, however, that any Incentive Stock
Option must be exercised within 3 months of the Normal Retirement Date, or
within one year from the Termination date of employment caused by Disability.
(b) Termination of Employment. Except as otherwise provided in this
Section 9, if the employment of a person to whom an option has been granted
under this Plan is terminated for any reason, such option shall, to the extent
not theretofore exercised, continue to be exercisable to the same extent that it
was exercisable for a period of 30 days from the date of such termination of
employment, or for such other period as may be determined by the Committee at
the time of grant, whereupon it shall terminate and shall not thereafter be
exercisable; provided, however, that in the event of termination of employment
for cause involving dishonesty, malfeasance, misfeasance or the commission of a
criminal offense (with respect to which determination of the Committee shall be
final and conclusive), any such option shall terminate immediately upon such
termination of employment. No option granted under this Plan shall be affected
by any change of duties or position of the person to whom such option was
granted or by any temporary leave of absence granted to such person by the
Company.
(c) Death. Unless otherwise determined by the Committee at the time of
grant, if a person to whom an Option has been granted under this Plan (the
"Grantee") dies prior to the expiration of the term of such option, such option
shall be exercisable by the estate of the Grantee, or by a person who acquired
the right to exercise such option by bequest or inheritance from the Grantee, at
any time within two years after the death of such person and prior to the date
upon which the term of such option expires, to the extent and in the manner
exercisable by the Grantee as of the date of death.
10. Adjustment Upon Changes in Capitalization; Changes in Control
6
<PAGE>
(a) If the outstanding shares of Stock of the Company as a
whole are increased, decreased, changed into, or exchanged for, a different
number or kind of shares or securities of the Company, whether through merger,
consolidation, reorganization, recapitalization, reclassification, stock
dividend, stock split, combination of shares, exchange of shares, change in
corporate structure, or amendment to the articles of incorporation of the
Company or otherwise, an appropriate and proportionate adjustment, as determined
by the Committee and subject only to the approval of regulatory authorities
having jurisdiction, if any, shall be made to the number and kind of shares
subject to this Plan, and to the number, kind, and per share Incentive Stock
Option Price or Nonstatutory Stock Option Price (as the case may be) of shares
subject to unexercised options granted prior to any such change. Any such
adjustment shall be made without a change in the aggregate purchase price of the
shares of Stock subject to the unexercised portion of any option.
(b) Upon the effective date of the dissolution or liquidation
of the Company, or of a reorganization, merger or consolidation of the Company
with one or more other corporations in which the Company is not the surviving
corporation, or of the transfer of substantially all of the assets or the
transfer of all of the shares of the Company to another corporation (any such
transaction being referred to herein as a "Terminating Event"), this Plan and
any option theretofore granted hereunder shall terminate unless provision is
made in writing in connection with such Terminating Event for the continuance of
this Plan and for the assumption of options theretofore granted hereunder, or
the substitution for such options of new options covering the shares of the
successor corporation, or a parent or subsidiary thereof, with such appropriate
adjustments as may be determined or approved by the Committee (or the successor
to the Company) to the number and kind of shares subject to such substituted
options and to the Incentive Stock Option Price or Nonstatutory Stock Option
Price (as the case may be), in which event this Plan and the options theretofore
granted or the new options substituted therefor, shall continue in the manner
and under the terms so provided, subject only to the approval of the regulatory
authorities having jurisdiction, if any, under applicable law and regulation.
Upon the occurrence of a Terminating Event in which provision is not made for
the continuance of this Plan and for the assumption of options theretofore
granted or the substitution for such options of new options covering the shares
of a successor corporation or a parent or subsidiary thereof, each officer or
employee to whom an option has been granted under this Plan (or such person's
personal representative, estate or any person who acquired the right to exercise
the option from such person by bequest or inheritance) shall be entitled, prior
to the effective date of any such Terminating Event, (i) to exercise, in whole
or in part, such person's rights under any option granted to such person without
regard to any restrictions on exercise that would otherwise apply, or (ii) to
surrender any such option to the Company in exchange for receipt of cash equal
to the difference between the aggregate fair market value of the shares of Stock
such person would have received had the person exercised the option in full
immediately prior to consummation of such Terminating Event (determined as of
the date of the Terminating Event as provided in Section 8 hereof) and the
applicable aggregate Incentive Stock Option Price or Nonstatutory Stock Option
Price, as the case may be. To the extent that a person, pursuant to this Section
10(b), has a right to exercise or surrender any option on account of a
Terminating Event which such person otherwise would not have had at that time,
such person's exercise or surrender of such option shall be contingent upon the
consummation of such Terminating Event.
(c) In connection with the grant of any option hereunder the
Committee may, in its sole discretion, provide the holder thereof with the
right, following a "change in control" of the Company (as such term is defined
in Section 10(d) hereinafter), and without regard to any restrictions on
exercise that would otherwise apply, to exercise such option or to surrender
such option for a cash
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payment equal to the difference between the aggregate fair market value of the
number of shares of Stock then subject to the option, as determined in
accordance with Section 8 of this Plan as of the date of such surrender, and the
aggregate Incentive Stock Option Price or Nonstatutory Stock Option Price
therefor, as the case may be. Any right granted hereunder shall expire one year
after receipt by the option holder of written notice from the Company that a
change in control has occurred.
(d) For the purposes of this Plan, a "change in control" of the Company
shall mean: (i) any "person," including a "group" as determined in accordance
with the Section 13(d) of the Securities Exchange Act of 1934 ( the "Exchange
Act"), is or becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities; (ii) as a result of, or in connection
with, any tender offer or exchange offer, merger or other business combination
(a "Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company; (iii) the Company is merged or
consolidated with another corporation and as a result of the merger or
consolidation less than 80% of the outstanding voting securities of the
surviving or resulting corporation shall then be owned in the aggregate by the
former shareholders of the Company, other than (A) affiliates within the meaning
of the Exchange Act, or (B) any party to the merger or consolidation; (iv) a
tender offer or exchange offer is made and consummated for the ownership of
securities of the Company representing 20% or more of the combined voting power
of the Company's then outstanding voting securities; or (v) the Company
transfers substantially all of its assets to another corporation which is not
controlled by the Company.
11. Effective Date of the Plan
This Plan shall become effective upon its adoption by the Board of
Directors; provided, however, that (i) approval by the affirmative votes of a
majority of the outstanding shares of common stock of the Company eligible to
vote thereon at a shareholder's meeting duly called and held under the
provisions of New York Law has been obtained within 12 months after the adoption
of this Plan by the Board of Directors; and (ii) the effectiveness of options
granted under this Plan prior to the date that such approval by the shareholders
is obtained shall also be subject to such approval.
12. Manner of Grant of Options
The granting of an option under this Plan shall be deemed to occur only
upon the date on which the Committee shall approve the grant of such option. All
options granted under this Plan shall be evidenced by a written agreement, in
such form as shall be determined by the Committee, signed by a representative of
the Committee and the recipient thereof.
13. Compliance with Law and Regulations
The obligation of the Company to sell and deliver any shares of Stock
under this Plan shall be subject to all applicable laws, rules and regulations,
and the obtaining of all approvals by governmental agencies deemed necessary or
appropriate by the Committee, and should the grant or exercise of any particular
option or options hereunder be found to be in contravention of any such laws,
rules or regulations, said options shall be void or voidable without affecting
any other options granted (or to be granted) hereunder. Except as otherwise
provided in Section 2 and Section 16 herein, the Committee may make such changes
in this Plan and include such terms in any option agreement as may be necessary
or appropriate, in the opinion of counsel to the Company, to comply with the
rules and regulations of any governmental authority or to obtain, for officers
and employees granted
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Incentive Stock Options, the tax benefits under the applicable provisions of the
Code and the regulations thereunder.
With respect to persons subject to Section 16 of the Securities Exchange Act
of 1934, as amended ("1934 Act"), transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors under the
1934 Act. To the extent any provision of this Plan or action by the
administrators of the Plan fails to so comply, it shall be deemed null and void,
to the extent permitted by law and deemed advisable by the administrators of the
Plan. Moreover, in the event the Plan does not include a provision required by
Rule 16b-3 to be stated herein, such provision (other than one relating to
eligibility requirements, or the price and amount of awards) shall be deemed
automatically to be incorporated by reference into the Plan insofar as
participants subject to Section 16 are concerned.
14. Tax Withholding
The Company shall have the right, in its sole discretion, to deduct or
otherwise effect a withholding of any amount required by federal or state laws
to be withheld with respect to the grant, exercise or surrender of any option or
the sale of stock acquired upon the exercise of an Incentive Stock Option
granted hereunder in order for the Company to obtain a tax deduction otherwise
available as a consequence of such grant, exercise, surrender or sale, as the
case may be.
15. Nonexclusivity of the Plan
Neither the adoption of this Plan by the Board of Directors nor the
submission of this Plan to the shareholders of the Company for approval shall be
construed as having any impact on existing qualified or nonqualified retirement,
bonus or similar plans of the Company or as creating any limitations on the
power of the Board of Directors to adopt such other incentive arrangements as it
may deem desirable, including, without limitation, the granting of stock options
or stock appreciation rights otherwise than under this Plan, and such
arrangements may be either applicable generally or only in specific cases.
Any options granted under the Company's 1988 Stock Option Plan or Amended
and Restated 1988 Stock Option Plan (the "1988 Plan") shall remain in effect
subject to the terms of the 1988 Plan.
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16. Amendment
The Board of Directors at any time, and from time to time, may
amend this Plan, and except as provided in Sections 10 or 11 hereof, no
amendment shall be effective unless approved by the affirmative votes of the
holders of a majority of the outstanding shares of the Company's Voting Stock
within 12 months after the date of the adoption of such amendment, if such
amendment would:
(a) Increase the number of shares of Stock which may be made
subject to options, or which may be issued upon the exercise of options granted
under this Plan;
(b) Change in substance the provisions of Section 2 hereof
relating to administration of this Plan, or of Section 4 hereof relating to
eligibility to participate in this Plan;
(c) Change the method of computing the Incentive Stock Option
Price for shares of Stock subject to Incentive Stock Options or the Nonstatutory
Stock Option Price for shares of Stock subject to Nonstatutory Stock Options or
decrease any option price;
(d) Increase the maximum term of any options provided for
herein, or the term of the Plan; or
(e) Materially increase the benefits accruing to participants
under the Plan.
Except as provided in Sections 11 and 13 hereof, rights and
obligations under any option granted before amendment of this Plan shall not be
altered or impaired by amendment of this Plan, except with the consent of the
person to whom the option was granted.
17. Termination or Suspension
The Board of Directors at any time may suspend or terminate
this Plan. This Plan, unless sooner terminated, shall terminate on the fifth
anniversary of its adoption by the Board of Directors or its approval by the
shareholders of the Company, whichever is earlier, but such termination shall
not affect any option theretofore granted. No option may be granted under this
Plan while this Plan is suspended or after it is terminated.
No rights or obligations under any option granted while this
Plan is in effect shall be altered or impaired by suspension or termination of
this Plan, except with the consent of the person to whom the option was granted.
Any option granted under this Plan may be terminated by agreement between the
holder thereof and the Company and, in lieu of the terminated option, a new
option may be granted with an Incentive Stock Option Price or a Nonstatutory
Stock Option Price, as the case may be, which may be higher or lower than the
Incentive Stock Option Price or Nonstatutory Stock Option Price, as the case may
be, of the terminated option.
18. Continuation of Employment
Nothing contained in this Plan (or in any written option
agreement) shall obligate the Company or any Subsidiary to continue for any
period to employ an officer or employee to whom an option has been granted, or
interfere with the right of the Company or Subsidiary to vary the terms of such
person's employment or reduce such person's compensation.
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19. Exculpation and Indemnification
The Company shall indemnify and hold harmless the members of
the Board of Directors and the members of the Committee from and against any and
all liabilities, costs, and expense incurred by such persons as a result of any
act, or omission to act, in connection with the performance of such persons'
duties, responsibilities, and obligations under this Plan, other than such
liabilities, costs and expenses as may result from the negligence, gross
negligence, bad faith, willful misconduct, or criminal acts of such persons.
20. Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Plan.
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