SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BANKNORTH GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 03-0321189
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
300 Financial Plaza, P.O. Box 5420, Burlington, VT 05401-5420
(Address of Principal Executive Offices)
1994 Deferred Compensation Plan for Directors and Selected Executives of
Banknorth Group, Inc. and Participating Affiliates
(Amended and Restated July 1, 1997)
(Full title of the plan)
With copy to:
Mr. William H. Chadwick Denise J. Deschenes, Esq.
President and Chief Executive Officer Primmer & Piper, P.C.
Banknorth Group, Inc. 52 Summer Street, P.O. Box 159
300 Financial Plaza, P.O. Box 5420 St. Johnsbury, VT 05819
Burlington, VT 05401-5420
(Name and address of agent for service)
(802) 658-9959
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered(1) price per unit (2) price(2) registration fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $1.00 600,000 shs. $57.375 $34,425,000 $10,432
<FN>
<F1> Includes associated rights (the "Rights") to purchase Common Stock.
Until the occurrence of certain prescribed events, none of which has
occurred, the Rights are not exercisable, are evidenced by the
certificates representing the Common Stock, and will be transferred
along with, and only with, the Common Stock. Pursuant to Rules
416(a) and (b), this registration statement is also intended to
cover such number of additional shares of the Company's common stock
and associated rights as may be necessary to prevent dilution of the
shares initially registered hereby resulting from stock splits or
stock dividends, if any, occurring after the effective date of this
registration statement.
<F2> Estimated solely for the purposes of calculating the registration
fee, and based on the closing price of the Company's Common Stock on
October 17, 1997, as reported in the NASDAQ National Market System.
</FN>
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
[Omitted from this filing in accordance with the Note to Part I of Form S-8]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents, filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference into
this Registration Statement;
(1) The Company's Annual Report on Form 10-K, as amended by
Form 10-K/A, for the year ended December 31, 1996;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1997;
(3) The Company's Current Report on Form 8-K filed on April
14, 1997; and
(4) The description of the Company's Common Stock, $1.00 par
value, and associated Common Stock Purchase Rights, contained in the
Company's Current Report on Form 8-K dated November 30, 1989, as amended,
and in its Registration Statement on Form 8-A dated November 29, 1990, as
amended.
In addition, all documents subsequently filed by the Company
pursuant to Section 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 offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's board of directors to grant, indemnity
to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liability (including
reimbursement for expenses incurred) arising under the Securities Act of
1933, as amended. In addition, the Certificate of Incorporation of
Banknorth Group, Inc. contains the following provisions relating to
indemnification of directors and officers:
ELEVENTH: The Corporation shall indemnify each director and officer
of the Corporation, his or her heirs, executors and administrators, and
may indemnify each employee and agent of the Corporation, his or her
heirs, executors, administrators and all other persons whom the
Corporation is authorized to indemnify under the provisions of the General
Corporation Law of the State of Delaware, to the extent permitted by law
(a) against all expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her
in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, or in connection with any
appeal therein, or otherwise, and (b) against all expenses (including
attorney's fees) actually and reasonably incurred by him or her in
connection with any appeal therein, or otherwise; and no provision of this
Article Eleventh is intended to be construed as limiting, prohibiting,
denying or abrogating any of the general or specific powers or rights
conferred by the General Corporation Law of the State of Delaware upon the
Corporation to furnish, or upon any court to award, such indemnification,
or indemnification as otherwise authorized pursuant to the General
Corporation Law of the State of Delaware or any other law now or hereafter
in effect.
The Board of Directors of the Corporation may, in its discretion,
authorize the Corporation to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him or her or incurred by him or her in any
such capacity, or arising out of his or her status as such, whether or not
the Corporation would have the power to indemnify him or her against such
liability under the foregoing paragraph of this Article Eleventh.
TWELFTH: No director of the Corporation shall be personally liable
to the Corporation or to any of its stockholders for monetary damages for
breach of fiduciary duty as a director, notwithstanding any provision of
law imposing such liability; provided, however, that to the extent
required from time to time by applicable law, this provision shall not
eliminate the liability of a director, to the extent such liability is
provided by applicable law, (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of Title 8 of the Delaware code,
or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Article Twelfth shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to the effective date of such amendment
or repeal.
In addition, Banknorth maintains a directors' and officers'
liability insurance policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following documents are filed as Exhibits to this
Registration Statement:
Exhibit 4 - 1994 Deferred Compensation Plan of Banknorth Group, Inc. and
Participating Affiliates (Amended and Restated July 1, 1997).
Exhibit 5 - Opinion and Consent of Primmer & Piper, P.C. re validity of
the shares of Common Stock and associated Common Stock
Purchase Rights.
Exhibit 15 - Letter of KPMG Peat Marwick LLP re unaudited interim
financial information.
Exhibit 23 - (i) Consent of KPMG Peat Marwick LLP.
(ii) Consent of Primmer & Piper, P.C. (contained in Exhibit 5)
(b) Not applicable.
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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that with respect to paragraphs (a)(1)(i) and
(a)(1)(ii), this undertaking is limited to information required to be
included in a post-effective amendment by those paragraphs and which is
not otherwise contained in periodic reports filed by the registrant
pursuant to section 13 of section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) 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 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.
(5) To deliver, or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference
in the prospectus to provide such interim financial information.
(6) 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
(described in item 6), 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.
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 Burlington, State of Vermont, on October 17, 1997.
BANKNORTH GROUP, INC.
By: /s/ William H. Chadwick
---------------------------------
William H. Chadwick, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William H. Chadwick President, Chief Executive 10/17/97
- ----------------------------- Officer, and Director
William H. Chadwick
/s/ Thomas J. Pruitt Executive Vice President 10/17/97
- ----------------------------- and Chief Financial Officer
Thomas J. Pruitt
/s/ Neal E. Robinson Treasurer and Principal 10/17/97
- ----------------------------- Accounting Officer
Neal E. Robinson
/s/ Thomas J. Amidon Director 10/17/97
- -----------------------------
Thomas J. Amidon
/s/ Jacqueline D. Arthur Director 10/17/97
- -----------------------------
Jacqueline D. Arthur
/s/ Robert A. Carrara Director 10/17/97
- -----------------------------
Robert A. Carrara
/s/ Susan C. Crampton Director 10/17/97
- -----------------------------
Susan C. Crampton
/s/ Richard J. Fleming Director 10/17/97
- -----------------------------
Richard J. Fleming
/s/ Luther F. Hackett Director 10/17/97
- -----------------------------
Luther F. Hackett
/s/ Kathleen Hoisington Director 10/17/97
- -----------------------------
Kathleen Hoisington
/s/ Richard M. Narkewicz Director 10/17/97
- -----------------------------
Richard M. Narkewicz
/s/ John B. Packard Director 10/17/97
- -----------------------------
John B. Packard
/s/ R. Allan Paul Director 10/17/97
- -----------------------------
R. Allan Paul
/s/ Angelo P. Pizzagalli Director 10/17/97
- -----------------------------
Angelo P. Pizzagalli
/s/ Thomas P. Salmon Director 10/17/97
- -----------------------------
Thomas P. Salmon
</TABLE>
EXHIBIT LISTING
Exhibit 4 - 1994 Deferred Compensation Plan of Banknorth Group, Inc. and
Participating Affiliates (Amended and Restated July 1, 1997).
Exhibit 5 - Opinion and consent of Primmer & Piper, P.C. re validity of
the shares of Common Stock and associated Common Stock
Purchase Rights.
Exhibit 15 - Letter of KPMG Peat Marwick LLP re unaudited interim
financial information.
Exhibit 23 - (i) Consent of KPMG Peat Marwick LLP.
(ii) Consent of Primmer & Piper, P.C. (contained in Exhibit 5).
EXHIBIT 4
1994 DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND SELECTED EXECUTIVES
OF
BANKNORTH GROUP, INC. AND PARTICIPATING AFFILIATES
(July 1, 1997 Amendment and Restatement)
This Deferred Compensation Plan ("Plan") is established for the
benefit of the non-employee members of the Boards of Directors and certain
selected employees of Banknorth Group, Inc. (sometimes hereinafter the
"Corporation") and its subsidiaries that elect to participate, with the
corporation for whom such person performs services hereinafter referred to
as the "Employer." The Plan is as follows:
1. Purpose. The purpose of the Plan is to provide a
foundation for continued growth of the Employer by strengthening its
capacity to attract and retain outstanding directors and selected
executives in continued service.
2. Definitions. As used in this Plan, the following terms
have the following meanings:
(a) "Compensation" shall mean all fees, salary or other
compensation paid by the Employer to a Participant (including any amount
of such compensation which a Participant elects to offer to defer under
this Plan, but not including amounts paid as expense reimbursement).
(b) "Effective Date" shall mean January 1, 1994, or such later
date as a Participant's Election Form becomes effective.
(c) "Disabled" or "Disability" shall mean the complete and
permanent inability by reason of illness or accident to perform the duties
of the principal occupation at which a Participant was employed when such
disability commenced. All determinations as to the date and extent of
Disability of any Participant shall be made by the Corporation, upon the
basis of such evidence as the Corporation deems necessary and desirable.
(d) The Employer is a member of the Banknorth Group, Inc. group
of affiliated companies, which includes Banknorth Group, Inc., First
Massachusetts Bank, First Vermont Bank and Trust Co., Farmington National
Bank, Franklin Lamoille Bank, Granite Savings Bank & Trust Co., The Howard
Bank, N.A., North American Bank Corporation, Woodstock National Bank, The
Stratevest Group, N.A., and Banknorth Mortgage Company and any other
corporations that may hereafter become similarly affiliated therewith.
"Affiliate" shall mean any member of the Banknorth Group, Inc. group of
affiliated companies other than the Employer.
(e) The terms "pay," "paid," "payment," and like usage in the
content of the payment of benefits under this Plan shall refer to the
distribution of common stock of the Corporation when referring to benefit
distributions from the Restricted Stock Account, as well as to the payment
of cash benefits from the Cash Account.
(f) The words "fair market value," when referring to a share of
common stock of the Corporation, shall mean either (i) the closing price
of one share of common stock of the Corporation as of the date in question
or (ii) if the Board of Directors of the Corporation otherwise
affirmatively determines, the average of the high and low prices of one
share of common stock of the Corporation on the date in question, as
reported on a stock exchange or over-the-counter market on which such
common stock is traded.
(g) All other terms defined elsewhere in this Plan shall have the
meanings ascribed thereto and such meanings shall apply throughout this
Plan.
3. Participants. Directors of the Employer who are not also
employees of the Employer and executive officers of the Employer
specifically selected by resolution of the Board of Directors of the
Corporation are eligible to participate in the Plan and are referred to
herein as "Participant" when such person has filed an Election Form which
has been accepted by the Employer or the Corporation.
4. Participant's Election.
(a) An election under this Plan may be made only on an election
form supplied by the Employer ("Election Form"), which Election Form must
be fully completed, dated and executed by the Participant and accepted by
the Employer or the Corporation. The Employer or the Corporation may
refuse to accept any Election Form filed by any person for any reason
whatsoever or for no reason, and election under this Plan shall not be
effective and no person shall be entitled to any benefits under this Plan
unless and until the Employer or the Corporation shall have accepted the
person's Election Form.
(b) Any election under this Plan must be made before the
Effective Date or before the end of any calendar year thereafter with
respect to subsequent calendar years, as the case may be. Elections made
on or after the Effective Date or on or after January 1 of any subsequent
calendar year shall not be accepted by the Employer for the calendar year
in which the election is made. Notwithstanding the provisions of this
Paragraph 4(b), newly appointed directors and newly eligible executive
officers may also participate in this Plan by completing the Election Form
and submitting it to the Employer before any Compensation is earned by the
director or officer.
(c) A Participant may elect to defer an amount equal to all or
any portion of Compensation for the first year and any subsequent calendar
year.
An Election Form and participation in the Plan shall continue in
effect from calendar year to calendar year unless replaced by a subsequent
Election Form or unless a Participant indicates in writing his desire to
refrain from future participation in the Plan effective on the next
January 1. In no event shall such notification have the effect of
entitling a Participant in the Plan to receive payment with regard to any
elected deferral at any time earlier than the time at which he would have
received payment under the relevant Election Form.
(d) Any election made under this Plan shall be irrevocable with
respect to the period for which it is made. There shall be no requirement
to pay to any Participant any deferred compensation until such time as it
may be due under this Plan.
(e) Any election to defer compensation under this Plan will not
reduce benefits payable under any other benefit plan that the Employer may
provide for its directors or officers. Such benefits will be calculated
as if the election had not been made.
5. Deferred Compensation Accounts. Amounts deferred under this
Plan will be credited to one or two bookkeeping accounts (the Cash Account
and/or the Restricted Stock Account, as hereinafter defined) for the
Participant in accordance with the Participant's election on an Election
Form. The Participant's ultimate deferred compensation payments shall be
based on the aggregate value of the Cash Account and the aggregate number
of Restricted Stock Units accrued in the Restricted Stock Account
determined as hereinafter set forth:
(a) A Participant may elect that all or any part of amounts
deferred be credited to a so-called "Cash Account". All amounts credited
to the Cash Account shall be credited with earnings at a rate (adjusted
annually) equal to one-half percent (1/2%) above the coupon rate of a one-
year U.S. Treasury Bill at the first auction date of the year or such
other comparable rate established by the Employer. (For example, if the
applicable Treasury bill rate is six percent (6%), the earnings rate
hereunder would be six and one-half percent (6-1/2%) for the year in
question.)
(b) A Participant may elect that all or any part of amounts
deferred be credited to a so-called "Restricted Stock Account". All
amounts credited to the Restricted Stock Account shall be applied to the
crediting of Restricted Stock Units. The number of Restricted Stock Units
credited to a Participant's Restricted Stock Account shall equal the
dollar amount deferred and credited to such account divided by the fair
market value of one share of common stock of the Corporation as determined
on a quarter end date selected by the Corporation. Fractional Restricted
Stock Units will be used. Each Restricted Stock Unit shall be deemed to
pay dividends as if it were one share of common stock of the Corporation
and any such deemed dividends will result in the crediting of additional
Restricted Stock Units to the Restricted Stock Account as of the next
quarter end date selected by the Corporation, with the number of
Restricted Stock Units so credited to be calculated in the manner set
forth above for deferrals. Such deferral amounts and deemed dividends,
which are pending the crediting of Restricted Stock Units, shall not be
credited with any earnings. After the crediting of Restricted Stock Units
to the Restricted Stock Account, subsequent fluctuations in the fair
market value of the common stock of the Corporation shall not effect any
change in the number of such Restricted Stock Units then credited to the
Restricted Stock Account.
(c) In the event of any change in the outstanding shares of
Banknorth Group, Inc. common stock by reason of any stock dividend or
split, recapitalization, merger, consolidation, spin-off, reorganization,
combination or exchange of shares or other similar corporate change, then
the Restricted Stock Account and Units of each Participant and the manner
of calculating earnings thereon shall be adjusted by the Corporation in a
reasonable manner to compensate for the change, and any such adjustment by
the Corporation shall be conclusive and binding for all purposes of the
Plan.
(d) All unpaid balances in a Participant's Cash Account shall,
notwithstanding the commencement of payment of deferred compensation with
respect to the Participant, continue to be credited with earnings until
paid. The balance of the Restricted Stock Units in the Restricted Stock
Account shall continue to be credited with dividends and be subject to
Paragraph 6(c) above until a payment from such account is made with
respect to such Restricted Stock Units in accordance with this Plan.
(e) Participants are not permitted to transfer amounts between
the Cash Account and the Restricted Stock Account. However, if a
successor Election Form is properly filed with and accepted by the
Employer, such Election Form may contain revised instructions as to the
proportion of future deferred amounts to be credited to each of the Cash
Account and the Restricted Stock Account.
(f) Notwithstanding any other provision of the Plan or any
election of any Participant (i) no Restricted Stock Units shall be
credited to the Restricted Stock Account of any Participant for the six
(6) month period preceding the Participant's anticipated retirement date
(or the first date of deferred compensation payment under any Election
Form, if earlier) and during such six (6) month period any amount that the
Participant elected for crediting to the Restricted Stock Account and any
dividends deemed paid on the Restricted Stock Units in the Restricted
Stock Account shall instead be credited to the Cash Account and (ii) in
addition, all dividends deemed paid on the Restricted Stock Units in the
Restricted Stock Account that would otherwise have been credited to the
Restricted Stock Account shall be credited to the Cash Account for the
period from and after such date until the date that is the earlier of:
(A) the date of the Participant's death, or
(B) the later of:
(I) The date of the Participant's retirement or termination of
duties as a director or executive officer, or
(II) The date that is six (6) months after the last date (prior
to the Participant's retirement or termination of duties) on which he
Participant purchased any equity security (as defined under Section 16 of
the Securities Exchange Act of 1934 or the regulations thereunder) of
Banknorth Group, Inc., provided that the crediting of Restricted Stock
Units under the Plan shall be deemed the purchase of such an equity
security.
(g) The amendment to this Plan is effective as of July 1, 1997
and changes the manner in which Restricted Stock Units (Phantom Stock
Units prior to amendment) are paid or distributed to Participants. Under
this Plan prior to amendment, Phantom Stock Units could be converted to
cash and placed in the Cash Account at the Participant's election at any
time commencing shortly after the Participant ceased service for the
Employer. Benefit payments were made only in cash and from the Cash
Account. Absent instruction from the Participant the Phantom Stock Units
were converted to cash only to the extent necessary to make benefit
payments. Under the Plan as amended, payments from the Cash Account and
distributions from the Restricted Stock Account are made independently.
Distributions from the Restricted Stock Account are made only in Banknorth
Group, Inc. common stock. Each Participant, including those currently
receiving benefit payments, will be afforded an election period of not
less than ten (10) days from the date of mailing a notice of election
during which the Participant may elect to have the Participant's Cash
Account and Phantom Stock Accounts governed by the Plan provisions as set
forth in this July 1, 1997 Amendment and Restatement. After a
Participant's making such an election, the Participant's participation and
benefits will be governed solely by the Plan as amended and the
Participant's Phantom Stock Account(s) will be converted to a Restricted
Stock Account(s) on July 1, 1997. The conversion will be effected by
dividing the aggregate dollar value of the Participant's Phantom Stock
Account as of July 1, 1997 by the fair market value of one share of common
stock of the Corporation as of such date and crediting the Restricted
Stock Account with a number of Restricted Stock Units equal to such
quotient. The Corporation may in its discretion (but shall not be
required to) afford, to Participants who do not initially elect to have
prior deferrals governed by this July 1, 1997 Amendment and Restatement,
subsequent opportunities to so elect. Absent such an election, the
Participant's deferrals prior to July 1, 1997 and benefits payable with
respect thereto will be governed under the terms of the January 1, 1996
Amendment and Restatement of the Plan; namely, the Participant may elect
to have the Phantom Stock Account converted to cash at the Participant's
option commencing shortly after the Participant ceases service for the
Employer, but the Participant may not receive distributions of Banknorth
Group, Inc. common stock from the Plan. This amendment and restatement
applies to all electing Participants, including those who are not now
deferring compensation under the Plan but who are receiving benefits under
the Plan, and to all deferrals by all Participants on and after July 1,
1997 whether or not the Participant makes an election. Notwithstanding
Paragraph 4 hereof, because of the mid-year change to the Plan
Participants will be afforded an opportunity prior to July 1, 1997, to
revise their deferral election prospectively for the period commencing
July 1, 1997 through year-end 1997.
6. Benefits.
(a) Subject to the provisions of Paragraph 14 below, compensation
deferred pursuant to the Plan shall be paid to a Participant, or to his
designated Beneficiary in the event of his death, in the manner and at the
time provided for below and as specified by the Participant in his
Election Form, which is incorporated herein by reference.
(b) Notwithstanding the Participant's election, deferred
compensation shall not become payable upon the Participant's termination
of duties as a director or executive officer of the Employer or upon the
Participant's retirement from duties as a director or executive officer of
the Employer if directly thereafter the Participant becomes or continues
as a director or an employee of an Affiliate of the Employer. In such
event the Participant's termination of duties or retirement shall refer to
the Employee's service with the successor Affiliate(s).
(c) The Participant may elect to receive payments in a lump sum
or in annual installments for any fixed period of years not to exceed
fifteen (15) years. Payments to Participants from the Cash Account will
be made only in cash; payments to Participants from the Restricted Stock
Account will be made only in Banknorth Group, Inc. common stock with one
share of such common stock being issued for each Restricted Stock Unit in
question. The amount of each cash annual installment payment will be
determined by dividing the then aggregate value of the Cash Account by the
number of installments remaining to be paid. The number of shares of
Banknorth Group, Inc. common stock to be distributed will be determined by
dividing the then aggregate number of Restricted Stock Units by the number
of installments remaining to be paid and rounding up to the nearest whole
number of shares (except in the case of the last distribution where a
fractional share may be issued). Lump sum payments shall be made and
installment payments shall commence as soon as practicable after
termination of, or retirement from, duties as a director or officer,
another properly elected payment date, the Participant's death, or the
Participant's Disability, as the case may be. Because a Participant has
the option of choosing varying payment periods and varying ratios of the
Cash Account to the Restricted Stock Account in different elections, the
Employer may in its discretion, as of the date of an event triggering the
payment of deferred compensation amounts, elect either to continue to
maintain separate accounting with respect to different elections, or
proceed to combine the accounting with respect to different elections by
determining, in any reasonable fashion, a payout pattern consistent with
the effect of the varying elections; provided, always, that the Cash
Account(s) shall not be merged with the Restricted Stock Account(s).
Absent an election by a Participant, a Participant's Phantom Stock Account
will not be converted to or merged with a Restricted Stock Account.
(d) If a Participant dies before all sums due have been paid in
full, the balance shall become payable to the Participant's designated
Beneficiary or Beneficiaries in a lump sum or in installments on the terms
of payment and in the order, as specified by the Participant in his
Election Form. If a Participant is receiving installment payments and has
elected installment payments for the Beneficiary(ies), installment
payments to the Beneficiary(ies) will be a continuation of the payments
being made to the Participant. If the Participant has designated no
Beneficiary or if no Beneficiary survives so as to receive the first
payment under the Plan, the balance shall be paid in a lump sum to the
Participant's estate as soon as practicable following the Participant's
death. Upon the death of the last surviving Beneficiary (if any
Beneficiary has survived so as to receive any payment under the Plan), any
balance unpaid under the Terms of the Plan will be paid in a lump sum to
such last surviving Beneficiary's estate.
7. Beneficiary Definition. A Participant may designate a
Beneficiary ("Beneficiary") to receive, in the event of the Participant's
death all amounts which may then and thereafter be payable under the Plan.
The Beneficiary shall receive such amounts in accordance with the
Participant's election and the circumstances (see Paragraph 6). A
Participant may change the designation of Beneficiary at any time or times
(without the consent of any prior Beneficiary) by delivering to the
Employer a written indication thereof on a form provided by the Employer.
So long as any Primary Beneficiary is living no Secondary Beneficiary
shall be entitled to any payments hereunder.
8. Discretionary Payments. Notwithstanding anything herein
contained to the contrary, the Board of Directors of the Employer shall
have the right, in its sole discretion, to accelerate the payments due
under this Plan, after the first payment under the Plan has become due
pursuant to Paragraph 6 hereof, (a) to a Participant who has become
Disabled, or (b) in the event of a financial hardship affecting the
personal or family affairs of any Participant hereunder, or (c) in the
event of a financial hardship affecting the personal or family affairs of
a Beneficiary of a deceased Participant, or (d) in payment of relatively
small amounts, or (e) for any other reason the Board of Directors deems
appropriate.
9. Nontransferability. No right to payment under this Plan shall
be subject to anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge the same shall be void. No right to
payment shall, in any manner, be liable for or subject to the debts,
contracts, liabilities or torts of the person entitled thereto. If, at
the time when payments are to be made hereunder, the Participant or
Beneficiary is indebted to the Employer or any Affiliate of the Employer
then any payments remaining to be made hereunder may, at the discretion of
the Employer, be reduced by the amount of such indebtedness. An election
by the Employer not to reduce such payments shall not constitute a waiver
of its or its Affiliate's claim for such indebtedness.
10. Plan Interpretation. The Board of Directors of the
Corporation shall have full power and authority to interpret, construe and
administer this Plan, and the Board's interpretations and construction
thereof, and actions thereunder, shall be binding and conclusive on all
persons for all purposes. None of the Corporation, the Employer nor any
member of the Board of either shall be liable to any person for any action
taken or omitted in connection with the interpretation and administration
of the Plan unless attributable to the Corporation's, the Employer's or
that Board member's own willful misconduct or lack of good faith. The
Corporation's determination as to the value of a Restricted Stock Unit as
of any particular date shall be binding and conclusive on all persons for
all purposes.
11. Nature of Reserves. The Employer or the Corporation may, but
shall not be required to set aside funds or purchase insurance contracts
or other assets in anticipation of payments to be made under this Plan.
Any such reserves or assets shall be usable by the Employer or the
Corporation as part of its general funds for any legal purpose whatsoever.
Nothing contained in this Plan and no action taken pursuant to the
provisions of this Plan shall create or be construed to create a trust or
escrow of any kind, or a fiduciary relationship between the Employer (or
the Corporation) and any Participant, any Beneficiary or any other person.
To the extent that any person acquires a right to receive payments from
the Employer under this Plan, such right shall be no greater than the
right of any unsecured general creditor of the Employer.
12. Successors and Assigns. This Plan shall be binding upon and
inure to the benefit of the Employer, its successors and assigns, and the
Participant and his heirs and legal representatives.
13. Applicable Law. This Plan shall be construed in accordance
with and governed by the laws of the State of Vermont.
14. Forfeiture. Notwithstanding anything herein contained to the
contrary, except as specified in this Paragraph 14 no payment of any then
unpaid installments shall be made, and all rights of the Participant and
his or her Beneficiary(ies) under this Plan shall be forfeited, if (a) the
Participant shall engage in any activity or conduct or shall commit any
omission, which in the opinion of the Board of Directors of the Employer
is materially adverse to the best interests of the Employer, or (b) after
the Participant ceases to be employed by the Employer, he or she shall
fail or refuse to provide advice and counsel to the Employer when
reasonably requested to do so. In such event, the Participant shall be
entitled to receive in installments as provided pursuant to this Plan, but
only in the exact dollar amounts deferred (in cash) without accounting for
any earnings credited to the Cash Account and without credit for any
accretions to or increase or decrease in value in the Restricted Stock
Account (i.e., the aggregate dollar amount deferred by the Participant
will be paid out to the Participant without increase or decrease for any
reason).
15. Alternate Payee. If the Board of Directors of the Employer
shall determine that any person to whom any payment is payable under this
Plan is unable to care for his affairs because of illness or accident, is
a minor, or is otherwise incompetent, any payment due to such person may
be paid to a legally appointed guardian. Any such payment shall be a
complete discharge of the liability of the Employer to the Participant and
any Beneficiary under this Plan.
16. Amendments to the Plan. The Board of Directors of the
Corporation may amend the Plan at any time and from time to time, without
the consent of the Participants or their Beneficiaries, provided, however,
that no amendment shall divest any Participant or Beneficiary of the
credits to his accounts.
17. Termination of the Plan. The Board of Directors of the
Corporation may terminate the Plan at any time. Upon termination of the
Plan, distribution of the credits to a Participant's accounts shall be
made in the manner and at the time heretofore prescribed; provided that no
additional credits shall be made to the accounts of a Participant
following termination of the Plan other than interest or other accretions
thereon credited pursuant to Paragraph 5.
18. Transfer Between Plans. If a Participant hereunder should
become a director or employee of an Affiliate of the Employer, all
obligations from the Employer to the Participant under this Plan may, in
the sole discretion of the Employer and the Affiliate, be assumed by the
Affiliate, and in such event the Employer shall have no further obligation
to the Participant under this Plan and the Affiliate will bound to provide
benefits to the Participant under this Plan in accordance with the
Participant's then relevant election form(s) accepted by the Employer or
the Affiliate, as the case may be. As a condition to participation in the
Plan, the Participant agrees that any Affiliate that assumes obligations
to the Participant under the Plan shall thereafter have all of the rights
that the Employer has or had under the Plan.
IN WITNESS WHEREOF, the Corporation has caused this Plan as Amended
and Restated to be executed by its duly authorized officer and adopted to
be effective as of the 1st day of July, 1997.
BANKNORTH GROUP, INC.
BY:
Its Duly Authorized Officer
Attest:
Secretary
EXHIBIT 5
October 16, 1997
Banknorth Group, Inc.
300 Financial Plaza
Burlington, VT 05401
Re: Registration Statement on Form S-8
1994 Deferred Compensation Plan for Directors and Selected
Executives of Banknorth Group, Inc. and Participating Affiliates
(July 1, 1997 Amendment and Restatement)
Gentlemen:
Reference is made to a Registration Statement of Banknorth Group, Inc.
(the "Company") on Form S-8 (the "Registration Statement"), to be filed by
the Company on or about October 21, 1997 with the Securities and Exchange
Commission, with respect to the proposed issuance and sale pursuant to the
1994 Deferred Compensation Plan for Directors and Selected Executives of
Banknorth Group, Inc. and Participating Affiliates (July 1, 1997 Amendment
and Restatement)(the "Plan") of up to 600,000 shares of the Company's
Common Stock, $1.00 par value per share ("Common Stock"), together with
associated common share purchase rights issued under the terms of a Rights
Agreement dated as of November 27, 1990 between the Company and Mellon
Securities Trust Company, as Rights Agent, as amended ("Rights").
We have reviewed applicable provisions of law and have examined such
documents and records and have made inquiries of the officers and
directors of the Company as we considered necessary or appropriate for
purposes of this opinion. Based on the foregoing, we are of the opinion
that the shares of Common Stock and associated Rights to be issued by the
Company pursuant to the Plan, have been duly authorized for issuance
pursuant to the Plan and when issued and delivered in accordance with the
terms of the Plan, such Common Stock and associated Rights will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PRIMMER & PIPER, P.C.
/s/ Primmer & Piper, P.C.
- -----------------------------
EXHIBIT 15
The Board of Directors
Banknorth Group, Inc.
Re: Registration Statement on Form S-8 for the 1994 Deferred Compensation
Plan for Directors and Selected Executives of Banknorth Group, Inc. and
Participating Affiliates (Amended and Restated July 1, 1997).
With respect to the subject registration statement on Form S-8, we
acknowledge our awareness of the use therein of our reports dated April
25, 1997 and July 25, 1997 related to our reviews of consolidated interim
financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are
not considered part of a registration statement prepared or certified by
an accountant or a report prepared or certified by an accountant within
the meaning of sections 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
Albany, New York
October 16, 1997
EXHIBIT 23(i)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Banknorth Group, Inc.
We consent to incorporation by reference in the Registration Statement on
Form S-8 for the 1994 Deferred Compensation Plan for Directors and
Selected Executives of Banknorth Group, Inc. and Participating Affiliates
(Amended and Restated July 1, 1997) of our report dated January 24, 1997,
relating to the consolidated balance sheets of Banknorth Group, Inc. and
subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of income, changes in shareholders' equity, and
cash flows for each of the years in the three-year period ended December
31, 1996, which report appears in the December 31, 1996 Annual Report on
Form 10-K, as amended by Form 10-K/A, of Banknorth Group, Inc. Our report
refers to the adoption of the provisions of Statement of Financial
Accounting Standards No. 122, "Accounting for Mortgage Servicing Rights,"
Statement of Financial Accounting Standards No. 114, "Accounting by
Creditors for Impairment of a Loan," Statement of Financial Accounting
Standards No. 118, "Accounting by Creditors for Impairment of a Loan-
Income Recognition and Disclosures," and Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities."
/s/ KPMG Peat Marwick LLP
Albany, New York
October 16, 1997
