As filed with the Securities and Exchange Commission
on April 21, 1997 REGISTRATION NO.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
---------------
T R FINANCIAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 11-3154382
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION) IDENTIFICATION NO.)
1122 Franklin Avenue
Garden City, New York 11530
(516) 742-9300
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
---------------
T R FINANCIAL CORP. 1993 INCENTIVE
STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
---------------
John M. Tsimbinos
Chairman of the Board and Chief Executive Officer
T R Financial Corp.
1122 Franklin Avenue
Garden City, New York 11530
(516) 742-9300
Copy to:
Douglas J. McClintock, Esq.
Thacher Proffitt & Wood
Two World Trade Center - 39th Floor
New York, New York 10048
(212) 912-7400
(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND AREA CODE,
OF AGENT FOR SERVICE)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
<S> <C> <C> <C> <C>
Title of Securities to Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
be Registered Price Per Share(2) Aggregate Offering Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 600,000 shares $34.35 $20,609,925 $6,245.43
===================================================================================================================================
</TABLE>
(1) This registration statement pertains to the registration of additional
shares which may be issued pursuant to the T R Financial Corp. 1993
Incentive Stock Option Plan, as amended and restated effective as of
January 23, 1997 (the "Plan"). A total of 688,275 shares issuable under
the Plan were previously registered under the Securities Act of 1933,
as amended ("Securities Act") on a Form S-8 Registration Statement
filed with the Commission on April 20, 1994.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act, pursuant to which
120,100 shares subject to outstanding options are deemed to be offered
at the exercise price of $33.75 per share, 7,000 shares subject to
outstanding options are deemed to be offered at the exercise price of
$34.50 per share and 472,900 shares that may be acquired through the
exercise of options granted in the future are deemed to be offered at
$34.50 per share, the average of the high and low per share prices of
the common stock as reported on the Nasdaq Stock Market at the close
of business on April 17, 1997.
<PAGE>
REGISTRATION OF ADDITIONAL SECURITIES
This registration statement relates to the registration of
600,000 additional shares under the T R Financial Corp. 1993 Incentive Stock
Option Plan, as amended and restated as of January 23, 1997, which additional
shares were approved by the stockholders of the Registrant on April 21, 1997.
Pursuant to General Instruction E of Form S-8, the Registrant incorporates by
reference the contents of the earlier Registration Statement on Form S-8,
Registration No. 33-77994.
ITEM 8. EXHIBITS.
4 T R Financial Corp. 1993 Incentive Stock Option Plan, amended
and restated effective as of January 23, 1997.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as
to the legality of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Thacher Proffitt & Wood (included in Exhibit 5
hereof).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Village of Garden City, State of New York on the 21st day of
April, 1997.
T R Financial Corp.
(Registrant)
By: /s/ John M. Tsimbinos
-------------------------
John M. Tsimbinos
Chairman of the Board and
Chief Executive Officer
-3-
<PAGE>
Pursuant to the requirements of the Securities Act, 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/ John M. Tsimbinos Chief Executive Officer and April 21, 1997
- ---------------------- Chairman of the Board (Principal
John M. Tsimbinos Executive Officer)
/s/ Dennis E. Henchy Executive Vice President and April 21, 1997
- ---------------------- Chief Financial Officer (Principal
Dennis E. Henchy Financial and Accounting Officer)
/s/ A. Gordon Nutt President, Chief Administrative April 21, 1997
- --------------------- Officer and Director
A. Gordon Nutt
/s/ Maureen E. Clancy Director April 21, 1997
- ---------------------
Maureen E. Clancy
/s/ Robert F. Eisen Director April 21, 1997
- -------------------
Robert F. Eisen
/s/ Michael P. Galgano Director April 21, 1997
- ----------------------
Michael P. Galgano
/s/ Leonard Genovese Director April 21, 1997
- ---------------------
Leonard Genovese
/s/ Edward J. Kowatch Director April 21, 1997
- ---------------------
Edward J. Kowatch
/s/ Ernest L. Loser Director April 21, 1997
- -------------------
Ernest L. Loser
/s/ John C. Mesloh Director April 21, 1997
- ------------------
John C. Mesloh
/s/ James E. Orr, Jr. Director April 21, 1997
- ---------------------
James E. Orr, Jr.
/s/ Spiros J. Voutsinas Director April 21, 1997
- -----------------------
Spiros J. Voutsinas
</TABLE>
-4-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4 T R Financial Corp. 1993 Incentive Stock Option Plan, amended and
restated effective as of January 23, 1997 ..............................
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered.............................
23.1 Consent of KPMG Peat Marwick LLP........................................
23.2 Consent of Thacher Proffitt & Wood (included in Exhibit 5 hereof).......
-5-
T R FINANCIAL CORP.
1993 INCENTIVE STOCK OPTION PLAN
AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 23, 1997
1. PURPOSE.
The purpose of the T R Financial Corp. 1993 Incentive Stock Option
Plan, as amended and restated as of January 23, 1997 (the "Plan"), is to advance
the interests of T R Financial Corp. (the "Company") and its stockholders by
providing those employees of the Company and its Affiliates, as hereinafter
defined, including Roosevelt Savings Bank (the "Bank"), upon whose judgment,
initiative and efforts the successful conduct of the business of the Company and
its Affiliates largely depends, with additional incentive to perform in a
superior manner. A purpose of the Plan is also to attract people of experience
and ability to the service of the Company and its Affiliates.
2. DEFINITIONS.
The following definitions shall apply for the purposes of this Plan,
unless a different meaning is plainly indicated by the context:
(a) "Affiliate" means (i) a member of a controlled group of
corporations of which the Company is a member or (ii) an unincorporated trade or
business which is under common control with the Company as determined in
accordance with Section 414(c) of the Code and the regulations issued
thereunder. For purposes hereof, a "controlled group of corporations" shall mean
a controlled group of corporations as defined in Section 1563(a) of the Code
determined without regard to Sections 1563(a)(4) and (e)(3)(C).
(b) "Award" means a grant of Non-Statutory Stock Options, Incentive
Stock Options, and/or Limited Rights under the provisions of this Plan.
(c) "Beneficiary" means the person or persons designated by a
Participant, or otherwise determined to be entitled to a benefit under the Plan,
under Section 14.
(d) "Board of Directors" or "Board" means the board of directors of the
Company.
(e) "Change in Control" means an event of a nature that: (i) would be
required to be reported in response to Item 1(a) of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); (ii) results
in a Change in Control of the Bank or the Company within the meaning of the
Change in Bank Control Act and the Rules and Regulations promulgated by the
Federal Deposit Insurance Corporation (the "FDIC") at 12 C.F.R. ss. 303.4(a)
with respect to the Bank and the Board of Governors of the Federal Reserve
System ("FRB") at 12 C.F.R. ss. 225.41(b) with respect to the Company, as in
effect on the date hereof, but excluding any such Change in Control resulting
from the purchase of securities by the Company's or the Bank's tax-qualified
employee benefit plans and trusts; (iii) results in a transaction requiring
prior FRB approval under the Bank Holding Company Act of 1956, as amended, and
the regulations promulgated thereunder by the FRB at 12 C.F.R. ss. 225.11, as in
effect on the date hereof, except for the Company's acquisition of the Bank and
any transaction resulting from the purchase of securities by the Company's or
the Bank's tax-qualified employee benefit plans and trusts; or (iv) without
limitation, such a Change in Control shall be deemed to have occurred at such
time as (a) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Bank or
the Company representing 20% or more of the Bank's or the Company's outstanding
securities except for any securities of the Bank purchased by the Company in
connection with the initial conversion
<PAGE>
of the Bank from mutual to stock form (the "Conversion") and any securities
purchased by the Company's or the Bank's tax-qualified employee benefit plans
and trusts; or (b) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this clause (b), considered
as though he were a member of the Incumbent Board, but excluding, for this
purpose, any such person whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Company or similar transaction occurs in which the
Bank or Company is not the resulting entity; or (d) a proxy statement shall be
distributed soliciting proxies from stockholders of the Company, by someone
other than the current management of the Company, seeking stockholder approval
of a plan of reorganization, merger or consolidation of the Company or Bank or
similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to such plan or
transaction are exchanged for or converted into cash or property or securities
not issued by the Bank or the Company; or (e) a tender offer is made for 20% or
more of the voting securities of the Bank or Company then outstanding.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means a committee consisting of two or more members of
the Board, each of whom (i) is not a current employee of the Company or a
subsidiary thereof, (ii) is not a former employee of the Company who receives
compensation for prior services for the Company (other than benefits under a
tax-qualified retirement plan) during the taxable year, (iii) is not currently
and has not been an officer of the Company or a subsidiary thereof, (iv) does
not receive remuneration or consideration from the Company or a subsidiary
thereof, either directly or indirectly, for services rendered in any capacity
other than as a director and (v) does not possess an interest in any other
transaction, and is not engaged in a business relationship, for which disclosure
would be required pursuant to Item 404(a) or (b) of the proxy solicitation rules
of the Securities and Exchange Commission. Each member of the Committee shall be
a "non-employee director" as such term is defined under Rule 16b-3 under the
Exchange Act and an "outside director" as such term is defined under Section
162(m) of the Code and any regulations thereunder.
(h) "Date of Grant" means the date an Award granted by the
Committee is effective pursuantto the terms hereof.
(i) "Common Stock" means the Common Stock of the Company, par value
$.01 per share.
(j) "Disability" means disability as defined in the Bank's Retirement
Plan, or if not so defined, it shall mean a condition of total incapacity,
mental or physical, preventing further performance of duties with the Company or
the Bank, which the Board shall have determined, on the basis of competent
medical evidence, is likely to be permanent.
(k) "Fair Market Value" means, with respect to a share of Common Stock
on a specified date:
(i) the final reported sales price on the date in question (or
if there is no reported sale on such date, on the last preceding date
on which any reported sale occurred) as reported in the principal
consolidated reporting system with respect to securities listed or
admitted to trading on the principal United States securities exchange
on which the shares of Common Stock are listed or admitted to trading;
or
-2-
<PAGE>
(ii) if the shares of Common Stock are not listed or admitted
to trading on any such exchange, the closing bid quotation with respect
to a share of Common Stock on such date on the National Association of
Securities Dealers Automated Quotations System, or, if no such
quotation is provided, on another similar system, selected by the
Committee, then in use; or
(iii) if Sections 2(k)(i) and (ii) are not applicable, the
fair market value of a share of Common Stock as the Committee may
determine.
For purposes of the grant of Options in the Conversion, Fair Market Value shall
mean the initial public offering price of the Common Stock.
(l) "Incentive Stock Option" means an Option granted by the Committee
to a Participant, which Option is designed as an Incentive Stock Option pursuant
to Section 8.
(m) "Limited Right" means the right to receive an amount of cash based
upon the terms set forth in Section 9.
(n) "Non-statutory Stock Option" means an Option granted by the
Committee to a Participant, which is not designated by the Committee as an
Incentive Stock Option.
(o) "Option" means an Award granted under Section 7 or Section 8.
(p) "Participant" means an employee of the Company or its Affiliates
chosen by the Committee to participate in the Plan.
(q) "Plan" means the T R Financial Corp. 1993 Incentive Stock Option
Plan, as amended from time to time, and may be referred to as the "T R Financial
Corp. 1993 Incentive Stock Option Plan."
(r) "Plan Year(s)" means a calendar year or years commencing on or
after January 1, 1993.
(s) "Retirement" means retirement at the normal or early retirement
date as set forth in the Retirement Plan of Roosevelt Savings Bank in RSI
Retirement Trust, or, if such plan has been terminated, in any other
tax-qualified retirement or pension plan of the Bank.
(t) "Termination for Cause" means the termination upon an intentional
failure to perform stated duties, breach of a fiduciary duty involving personal
dishonesty, which results in material loss to the Company or one of its
Affiliates or willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or a final cease-and-desist order which
results in material loss to the Company or one of its Affiliates.
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it sees necessary for the proper administration of the Plan and
to make whatever determinations and interpretations in connection with the Plan
it sees as necessary or advisable. All determinations and interpretations made
by the Committee shall be binding and conclusive on all Participants in the Plan
and on their legal representatives and beneficiaries.
4. TYPES OF AWARDS.
Awards under the Plan may be granted in any one or a combination of:
-3-
<PAGE>
(a) Non-statutory Stock Options;
(b) Incentive Stock Options; and
(c) Limited Rights
as defined below in paragraphs 7 through 9 of the Plan.
5. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 15, the maximum number of
shares of Common Stock reserved for purchase pursuant to the exercise of Options
granted under the Plan is 1,288,275 shares of Common Stock. These shares of
Common Stock may be either authorized but unissued shares or shares previously
issued and reacquired by the Company. To the extent that Options or Limited
Rights are granted under the Plan, the shares underlying such Options will be
unavailable for future grants under the Plan except that, to the extent that
Options together with any related Limited Rights granted under the Plan
terminate, expire or are cancelled without having been exercised (in the case of
Limited Rights, exercised for cash), new Awards may be made with respect to
these shares.
6. ELIGIBILITY.
Officers and other employees of the Company or its Affiliates shall be
eligible to receive Incentive Stock Options, Non-statutory Stock Options and/or
Limited Rights under the Plan. Directors who are not employees or officers of
the Company or its Affiliates shall not be eligible to receive Awards under the
Plan.
7. NON-STATUTORY STOCK OPTIONS.
7.1 GRANT OF NON-STATUTORY STOCK OPTIONS.
The Committee may, from time to time, grant Non-statutory Stock Options
to eligible employees and, upon such terms and conditions as the Committee may
determine, grant Non-statutory Stock Options in exchange for and upon surrender
of previously granted Awards under this Plan. Non-statutory Stock Options
granted under this Plan are subject to the following terms and conditions:
(a) PRICE. The exercise price per share of Common Stock which
shall be deliverable upon the exercise of each Non-statutory Stock
Option shall be determined by the Committee on the date the Option is
granted. Such exercise price shall not be less than 100% of the Fair
Market Value of the Company's Common Stock on the Date of Grant. Shares
may be purchased only upon full payment of the exercise price.
Non-statutory Stock Options may be exercised pursuant to a "cashless
exercise" of an Option in accordance with applicable securities laws.
Payment of the exercise price may be made, in whole or in part, through
the surrender of shares of the Common Stock of the Company at the Fair
Market Value of such shares on the date of surrender.
(b) TERMS OF OPTIONS. The term during which each Non-statutory
Stock Option may be exercised shall be determined by the Committee, but
in no event shall a Non-statutory Stock Option be exercisable in whole
or in part more than 10 years from the Date of Grant. The Committee
shall determine the date on which each Non-statutory Stock Option shall
become exercisable and may provide that a Non-statutory Stock Option
shall become exercisable in installments. The shares comprising each
installment may be purchased in whole or in part at any time after such
installment becomes exercisable. The Committee may, in its sole
discretion, accelerate the time at which any Non-statutory Stock Option
may be exercised in whole or in
-4-
<PAGE>
part. Notwithstanding the above, in the event of a Change in Control of
the Company, all Non-statutory Stock Options shall become immediately
exercisable.
(c) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's employment with the Bank or the Company for any reason
other than Disability, Retirement, death, Change in Control or
Termination for Cause, the Participant's Non-statutory Stock Options
shall be exercisable only as to those shares which were immediately
purchasable by the Participant at the date of termination and only for
a period of three months following such termination. In the event of
Termination for Cause, all rights under the Participant's Non-statutory
Stock Options shall expire upon the date of such termination. In the
event of the death, Disability, Change in Control or Retirement of any
Participant, all Non-statutory Stock Options held by the Participant,
whether or not exercisable at such time, shall be exercisable by the
Participant or such Participant's legal representatives or
Beneficiaries for one year or such longer period as determined by the
Committee following the date of the Change in Control or the
Participant's death, Retirement or cessation of employment due to
Disability, provided that in no event shall the period extend beyond
the expiration of the Non-statutory Stock Option term.
8. INCENTIVE STOCK OPTIONS.
8.1 GRANT OF INCENTIVE STOCK OPTIONS.
The Committee may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan shall
be subject to the following terms and conditions:
(a) PRICE. The exercise price per share of Common Stock
deliverable upon the exercise of each Incentive Stock Option shall be
not less than 100% of the Fair Market Value of the Company's Common
Stock on the Date of Grant. However, if at the Date of Grant a
Participant owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporation (or, under Section 424(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, by reason of the ownership of such
classes of stock, directly or indirectly, by or for his brothers and
sisters (whether by the whole or half blood), spouse, ancestors and
lineal descendants of such employee, or by or for any corporation,
partnership, estate or trust of which such employee is a shareholder,
partner or beneficiary), the exercise price per share of Common Stock
deliverable upon the exercise of each Incentive Stock Option shall not
be less than 110% of the Fair Market Value of the Company's Common
Stock on the Date of Grant. Shares may be purchased only upon payment
of the full exercise price. Incentive Stock Options may be exercised
pursuant to a "cashless exercise" of an Option in accordance with
applicable securities laws. Payment of the exercise price may be made,
in whole or in part, through the surrender of shares of Common Stock of
the Company at the Fair Market Value of such shares on the date of
surrender.
(b) AMOUNTS OF OPTIONS. Incentive Stock Options may be granted
to any eligible employee in such amounts as determined by the
Committee. In the case of an Option intended to qualify as an Incentive
Stock Option, the aggregate Fair Market Value (determined as of the
time the Option is granted) of the Common Stock with respect to which
Incentive Stock Options granted are exercisable for the first time by
the Participant during any calendar year (under all plans of the
Participant's employer corporation and its parent and subsidiary
corporations) shall not exceed $100,000. The provisions of this Section
8.1(b) shall be construed and applied in accordance with Section 422(d)
of the Code and the regulations, if any, promulgated thereunder. To the
extent an Award under this Section 8.1 exceeds this $100,000 limit, the
portion of the Award in excess of such limit shall be deemed a
Non-statutory Stock Option.
-5-
<PAGE>
(c) TERMS OF OPTIONS. The term during which each Incentive
Stock Option may be exercised shall be determined by the Committee, but
in no event shall an Incentive Stock Option be exercisable in whole or
in part more than 10 years from the Date of Grant. If at the time an
Incentive Stock Option is granted to an employee, the employee owns
stock representing more than 10% of the total combined voting power of
the Company or of its parent or subsidiary corporation (or, under
Section 424(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, by reason of the ownership of such classes of stock, directly or
indirectly, by or for his brothers and sisters (whether by the whole or
half blood), spouse, ancestors and lineal descendants of such employee,
or by or for any corporation, partnership, estate or trust of which
such employee is a shareholder, partner or beneficiary), the Incentive
Stock Option granted to such employee shall not be exercisable after
the expiration of five years from the Date of Grant. No Incentive Stock
Option granted under this Plan is transferable except by will or the
laws of descent and distribution and is exercisable in his lifetime
only by the employee to whom it is granted.
The Committee shall determine the date on which each Incentive
Stock Option shall become exercisable and may provide that an Incentive
Stock Option shall become exercisable in installments. The shares
comprising each installment may be purchased in whole or in part at any
time after such installment becomes purchasable, provided that the
amount able to be first exercised in a given year is consistent with
the terms of Section 422 of the Code. The Committee may, in its sole
discretion, accelerate the time at which any Incentive Stock Option may
be exercised in whole or in part, provided that it is consistent with
the terms of Section 422 of the Code. Notwithstanding the above, in the
event of a Change in Control of the Company, all Incentive Stock
Options shall become immediately exercisable.
(d) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's employment with the Company or the Bank for any reason
other than Disability, Retirement, Change in Control, death or
Termination for Cause, the Participant's Incentive Stock Options shall
be exercisable only as to those shares which were immediately
purchasable by the Participant at the date of such termination and only
for a period of three months following such termination. In the event
of Termination for Cause, all rights under the Participant's Incentive
Stock Options shall expire upon such termination. In the event of death
or Disability of any employee, all Incentive Stock Options held by such
Participant, whether or not exercisable at such time, shall be
exercisable by the Participant or the Participant's legal
representatives or Beneficiaries for one year following the date of the
Participant's death or cessation of employment due to Disability. Upon
termination of the Participant's service with the Company due to
Retirement or a Change in Control, all Incentive Stock Options held by
such Participant, whether or not exercisable at such time, shall be
exercisable for a period of one year following the date of
Participant's cessation of employment; PROVIDED, HOWEVER, that such
Option shall not be eligible for treatment as an Incentive Stock Option
in the event such Option is exercised more than three months following
the date of the Participant's Retirement. In no event shall the
exercise period extend beyond the expiration of the Incentive Stock
Option term.
(e) COMPLIANCE WITH CODE. The Options granted under this
Section 8 of the Plan are intended to qualify as incentive stock
options within the meaning of Section 422 of the Code, but the Company
makes no warranty as to the qualification of any Option as an incentive
stock option within the meaning of Section 422 of the Code.
-6-
<PAGE>
9. LIMITED RIGHTS.
9.1 GRANT OF LIMITED RIGHTS.
Simultaneously with the grant of any Option, the Committee may grant a
Limited Right with respect to all or some of the shares covered by such Option.
Limited Rights granted under this Plan are subject to the following terms and
conditions:
(a) TERMS OF RIGHTS. In no event shall a Limited Right be
exercisable in whole or in part before the expiration of six months
from the Date of Grant of the Limited Right. A Limited Right may be
exercised only in the event of a Change in Control of the Company.
The Limited Right may be exercised only when the underlying
Option is eligible to be exercised, and only when the Fair Market Value
of the underlying shares on the day of exercise is greater than the
exercise price of the related Option.
Upon exercise of a Limited Right, the related Option shall
cease to be exercisable. Upon exercise or termination of an Option, any
related Limited Rights shall terminate. The Limited Rights may be for
no more than 100% of the difference between the exercise price and the
Fair Market Value of the Common Stock subject to the underlying Option.
The Limited Right is transferable only when the underlying Option is
transferable and under the same conditions.
(b) PAYMENT. Upon exercise of a Limited Right, the holder
shall promptly receive from the Company an amount of cash equal to the
difference between the Fair Market Value on the Date of Grant of the
related Option and the Fair Market Value of the underlying shares on
the date the Limited Right is exercised, multiplied by the number of
shares with respect to which such Limited Right is being exercised.
(c) TERMINATION OF EMPLOYMENT. Upon the termination of a
Participant's service for any reason other than Termination for Cause,
any Limited Rights held by the Participant shall then be exercisable
for a period of one year following termination. In the event of
Termination for Cause, all Limited Rights held by the Participant shall
expire immediately. Upon termination of the Participant's employment
for reason of death, Retirement or Disability, all Limited Rights held
by such Participant shall be exercisable by the Participant or the
Participant's legal representative or Beneficiaries for a period of one
year from the date of such termination. In no event shall the period
extend beyond the expiration of the term of the related Option.
10. SURRENDER OF OPTIONS.
In the event of a Participant's termination of employment as a result
of death, Disability or Retirement, the Participant (or the Participant's
Beneficiaries, personal representative(s), heir(s), or devisee(s)) may, in a
form acceptable to the Committee make application to surrender all or part of
the Options held by such Participant in exchange for a cash payment from the
Company of an amount equal to the difference between the Fair Market Value of
the Common Stock on the date of termination of employment and the exercise price
per share of the Option on the Date of Grant; PROVIDED, HOWEVER, that in the
event of Retirement, the application must be submitted by the Participant within
a "window period" beginning on the third business day following the date of
release of the Company's quarterly and annual earnings statements and ending on
the twelfth business day following such date. Whether the Committee accepts such
application or determines to make payment, in whole or part, is within its
absolute and sole discretion, it being expressly understood that the Committee
is under no obligation to any Participant whatsoever to make such payments. In
the event that the Committee accepts such application and the Company determines
to make payment, such payment shall be in lieu of the exercise of the underlying
Option and such Option shall cease to be exercisable.
-7-
<PAGE>
11. MAXIMUM LIMITATION ON OPTIONS
Notwithstanding anything contained herein to the contrary, the maximum
number of shares of Common Stock for which Options may be granted to any
Participant during any Plan Year shall not exceed 100,000 shares of Common
Stock.
12. RIGHTS OF A STOCKHOLDER: NONTRANSFERABILITY.
No Participant shall have any rights as a stockholder with respect to
any shares covered by a Nonstatutory and/or Incentive Stock Option until the
date of issuance of a stock certificate for such shares. Nothing in this Plan or
in any Award granted confers on any person any right to continue in the
employment of the Company or its Affiliates or to continue to perform services
for the Company or its Affiliates or interferes in any way with the right of the
Company or its Affiliates to terminate a Participant's services as an officer or
other employee at any time.
No Award under the Plan shall be transferable by the optionee other
than by will or the laws of descent and distribution and may only be exercised
during his lifetime by the optionee, or by a guardian or legal representative.
13. AGREEMENT WITH GRANTEES.
Each Award of Options, and/or Limited Rights will be evidenced by a
written agreement, executed by the Participant and the Company or its Affiliates
which describes the conditions for receiving the Awards including the date of
Award, the exercise price, if any, applicable periods, and any other terms and
conditions as may be required by the Board of Directors or applicable securities
law.
14. DESIGNATION OF BENEFICIARY.
A Participant may, with the consent of the Committee, designate a
person or persons to receive, in the event of death, any Option or Limited
Rights Award to which the Participant would then be entitled. Such designation
will be made upon forms supplied by and delivered to the Company and may be
revoked in writing. If a Participant fails effectively to designate a
Beneficiary, then the Participant's estate will be deemed to be the Beneficiary.
15. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding shares of Common Stock of
the Company by reason of any stock dividend or split, recapitalization, merger,
consolidation, spin-off, reorganization, combination or exchange of shares, or
other similar corporate change, or other increase or decrease in such shares
without receipt or payment of consideration by the Company, the Committee will
make such adjustments to previously granted Awards, to prevent dilution or
enlargement of the rights of the Participant, including any or all of the
following:
(a) adjustments in the aggregate number or kind of shares of
Common Stock which may be Awarded under the Plan;
(b) adjustments in the aggregate number or kind of shares of
Common Stock covered by Awards already made under the Plan; or
(c) adjustments in the exercise price of outstanding Incentive
and/or Non-statutory Stock Options, or any Limited Rights attached to
such Options.
No such adjustments may, however, materially change the value
of benefits available to a Participant under a previously granted
Award.
-8-
<PAGE>
16. WITHHOLDING.
There may be deducted from each distribution of cash and/or Common
Stock under the Plan the amount of tax required by any governmental authority to
be withheld.
17. AMENDMENT OF THE PLAN.
The Board of Directors may amend, revise or terminate the Plan in whole
or in part at any time; PROVIDED, HOWEVER, that, to the extent required to
comply with Section 162(m) of the Code, no such amendment or revision shall be
effective if it amends a material term of the Plan unless approved by the
holders of a majority of the voting shares of the Company. No such termination,
modification or amendment may affect the rights of a Participant under an
outstanding Award.
18. EFFECTIVE DATE OF PLAN.
The Plan became effective upon the consummation of the Conversion of
the Bank on June 29, 1993 (the "Effective Date") and was approved by the
stockholders of the Company on December 13, 1993. The Plan was amended and
restated as of January 23, 1997 as provided herein, and as so amended and
restated, is effective as of January 23, 1997. Following such date, the Plan, as
amended and restated, will be presented to the stockholders of the Company at
its next annual meeting of stockholders for approval for purposes of: (i)
satisfying one of the requirements of Section 422 of the Code governing the tax
treatment for Incentive Stock Options; (ii) satisfying one of the requirements
of Section 162(m) of the Code governing the tax deductibility of certain amounts
upon the exercise of certain Non-statutory Stock Options and Limited Rights; and
(iii) maintaining listing on the Nasdaq National Market. The failure to obtain
stockholder approval of the Plan, as amended and restated, will not affect the
validity of the Plan prior to its amendment and restatement, or any Options
granted thereunder, and in such event, the Plan as in effect prior to such
amendment and restatement, and any Options granted thereunder, shall continue in
full force and effect.
19. TERMINATION OF THE PLAN.
The right to grant Awards under the Plan will terminate upon the
earlier of 10 years after the Effective Date of the Plan or the issuance of
Common Stock or the exercise of Options or related Limited Rights equivalent to
the maximum number of shares reserved under the Plan as set forth in Section 5.
The Board of Directors has the right to suspend or terminate the Plan at any
time, provided that no such action will, without the consent of a Participant,
adversely affect such Participant's rights under a previously granted Award.
20. APPLICABLE LAW.
The Plan will be administered in accordance with the laws of the State
of Delaware.
21. HEADINGS.
The headings of sections are included solely for convenience of
reference. If there is any conflict between such headings and the text of the
Plan, the text shall control.
-9-
[LETTERHEAD OF THACHER PROFFITT & WOOD]
Writer's Direct Dial
212-912-7436
April 21, 1997
T R Financial Corp.
1122 Franklin Avenue
Garden City, New York 11530
Re: T R Financial Corp. 1993 Incentive Stock Option Plan,
as Amended and Restated Effective as of January 23, 1997
--------------------------------------------------------
Dear Sirs:
We have acted as counsel for T R Financial Corp., a Delaware
corporation ("Corporation"), in connection with the filing of a registration
statement on Form S-8 under the Securities Act of 1933, as amended
("Registration Statement") with respect to 600,000 additional shares of the
Corporation's common stock, par value $.01 per share ("Shares"), which may be
issued pursuant to the T R Financial Corp. 1993 Incentive Stock Option Plan, as
amended and restated effective as of January 23, 1997 ("Plan"). In rendering the
opinion set forth below, we do not express any opinion concerning law other than
the federal law of the United States and the corporate law of the State of
Delaware.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plan described above and, where we
have deemed appropriate, representations or certificates of officers of the
Corporation or public officials. We have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies.
Based on the foregoing, we are of the opinion that the Shares
which are being registered pursuant to the Registration Statement have been duly
authorized and, when issued and paid for in accordance with the terms of the
Plan, such Shares will be validly issued, fully paid and non-assessable.
<PAGE>
T R Financial Corp.
April 21, 1997 Page 2.
In rendering the opinion set forth above, we have not passed
upon and do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except federal securities
law).
This opinion is given solely for the benefit of the
Corporation and purchasers of shares under the Plan, and no other person or
entity is entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to our Firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD
By: /s/ Douglas J. McClintock
------------------------------
Douglas J. McClintock
EXHIBIT 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
T R Financial Corp.:
We consent to the use of our report dated January 23, 1997, relating to the
consolidated statements of financial condition of T R Financial Corp. and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1996 incorporated by
reference in this Registration Statement on Form S-8 of T R Financial Corp.
which report is incorporated by reference in the December 31, 1996 Annual Report
on Form 10-K of T R Financial Corp.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
New York, New York
April 21, 1997
