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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRUSTCO BANK CORP NY
(Exact Name of Company as Specified in Its Charter)
New York 14-1630287
-------------------------- -------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
5 Sarnowski Drive, Glenview, New York 12302
(Address of Principal Executive Offices) (Zip Code)
2004 TRUSTCO BANK CORP NY DIRECTORS STOCK OPTION PLAN
(Full Title of the Plan)
ROBERT T. CUSHING
Executive Vice President and Chief Financial Officer
TrustCo Bank Corp NY
5 Sarnowski Drive
Glenville, New York 12302
(518) 377-3311
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(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Leonard J. Essig, Esq.
Lewis, Rice & Fingersh, L.C.
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
(314) 444-7600
CALCULATION OF REGISTRATION FEE
================= ============== =============== =============== ==============
Proposed Proposed
Title Of Amount Maximum Maximum Amount Of
Securities To To Be Offering Price Aggregate Registration
Be Registered Registered(1) Per Share(2) Offering Price Fee
----------------- -------------- --------------- --------------- --------------
Common Stock,
($1.00 par value) 200,000 $12.13 $2,426,000 $307.37
================= ============== =============== =============== ==============
(1) The securities registered hereunder include securities issued
pursuant to the terms of the 2004 TrustCo Bank Corp NY Stock Option Plan that
provide for adjustments in the amount of securities being issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
(2) Pursuant to Rule 457(h) represents the average of the high and low
reported prices for the Company's common stock as reported on the NASDAQ
National Market System on May 17, 2004, such date being a date within five
business days prior to the date of filing of this Registration Statement.
1
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Information contained in the following documents of TrustCo Bank Corp
NY (the "Company") filed with the Securities and Exchange Commission (the
"Commission") is incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, as filed with the Commission pursuant to Section 13(a) of
the Securities Exchange Act of 1934 (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004, as filed with the Commission pursuant to Section 13(a) of the
Exchange Act;
(c) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 2003; and
(d) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-4 under the Securities Act of 1933,
Registration No. 33-40379, and an update of that description contained in the
Company's Current Report on Form 8-K filed on July 9, 1991; and including any
amendment or report filed for purposes of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of the filing of such reports and documents.
Item 4. Description of Securities
This item is inapplicable since the securities to be offered are
registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The legality of the issue of the shares of the Company's common stock
offered hereunder has been passed upon for the Company by Lewis, Rice &
Fingersh, L.C., St. Louis, Missouri.
Item 6. Indemnification Of Directors And Officers
Sections 721-726 of the New York Business Corporation Law provide for
or permit the indemnification of directors and officers of the Company, a New
York corporation, under certain circumstances. Generally, a corporation may
indemnify a director or officer of the corporation against any judgments,
fines, amounts paid in settlement and reasonable expenses, if such director or
officer acted, in good faith, for a purpose which he or she reasonably believed
to be in the best interests of the corporation and, in criminal actions, had no
reasonable cause to believe that his or her conduct was unlawful.
2
Article XI of the Company's Amended and Restated Certificate of
Incorporation provides that to the fullest extent elimination or limitation of
director liability is permitted by the New York Business Corporation Law, no
directors of the corporation shall be liable to the corporation, or its
shareholders for any breach of duty in such capacity.
Article 13, Section 13.2, of the Company's Bylaws, as amended,
expressly provides that no indemnification may be made to or on behalf of any
director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his or her acts were committed in bad
faith or were the result of an act of deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not entitled.
Pursuant to employment agreements between the Company and certain of
its executive officers, the Company provides that it shall indemnify such
executives for acts or decisions made by such executives in good faith while
performing services for the Company, and the Company shall use its best efforts
to obtain insurance coverage relating thereto.
Pursuant to a policy of directors' and officers' insurance with total
annual limits of $15,000,000, the directors and officers of the Company are
insured, subject to the limits, exceptions and other terms and conditions of
such policy, against liability for claims made against them for any actual or
alleged error or misstatement or misleading statement or act or omission or
neglect or breach of duty while acting in their individual or collective
capacities as directors or officers.
Item 7. Exemption from Registration Claimed
This item is inapplicable.
Item 8. Exhibits
The following exhibits are submitted herewith or incorporated by
reference herein.
Exhibit Exhibit
Number
4.1 2004 TrustCo Bank Corp NY Stock Option Plan.
5.1 Opinion of Lewis, Rice & Fingersh, L.C.
15.1 KPMG LLP Letter regarding Unaudited Interim Financial Information.
23.1 Independent Auditor's Consent.
3
23.2 Consent of Lewis, Rice & Fingersh, L.C. (included
as part of Exhibit 5.1).
24.1 Powers of Attorney.
Item 9. Undertakings
(a) The Company 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. Notwithstanding the foregoing, any
increase and decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 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.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company 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.
5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Schenectady, State of New York, on
May 18, 2004.
TRUSTCO BANK CORP NY
By /s/ Robert J. McCormick
-------------------------------------
Robert J. McCormick
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 May 18, 2004.
Name Title/Position
Chief Executive Officer
/s/ Robert J. McCormick (Principal Executive Officer)
-------------------------------
Robert J. McCormick
Executive Vice President and
Chief Financial Officer
/s/ Robert T. Cushing (Principal Financial and
------------------------------- Accounting Officer)
Robert T. Cushing
* Director
-------------------------------
Robert A. McCormick
* Director
-------------------------------
Barton A. Andreoli
* Director
-------------------------------
Anthony J. Marinello, M.D., PhD
* Director
-------------------------------
William D. Powers
6
* Director
-------------------------------
Joseph A. Lucarelli
* Director
-------------------------------
William J. Purdy
* By: /s/ Robert M. Leonard
---------------------------
Robert M. Leonard
Attorney-in-Fact
7
TRUSTCO BANK CORP NY
FORM S-8 REGISTRATION STATEMENT
Exhibit Index
Exhibits
4.1 2004 TrustCo Bank Corp NY Stock Option Plan
5.1 Opinion of Lewis, Rice & Fingersh, L.C.
15.1 KPMG LLP Letter regarding Unaudited Interim Financial
Information
23.1 Independent Auditor's Consent
23.2 Consent of Lewis, Rice & Fingersh, L.C. (included
as part of Exhibit 5.1)
24.1 Powers of Attorney
8
Exhibit 4.1
9
2004 TRUSTCO BANK CORP NY DIRECTORS STOCK OPTION PLAN
WHEREAS, TrustCo Bank Corp NY desires to establish a stock option plan
for its directors;
NOW, THEREFORE, TrustCo Bank Corp NY does hereby establish the 2004
TrustCo Bank Corp NY Directors Stock Option Plan as follows:
SECTION 1: PURPOSE OF THE PLAN
This Directors Stock Option Plan (the "Plan") has been established by TrustCo
Bank Corp NY to advance the interest of stockholders and the Company by
encouraging Directors to acquire a larger ownership in the Company. The
resulting increased proprietary interest in the Company increases their
incentive to continue active service as a Director and to oversee the success
and growth of the Company.
SECTION 2: DEFINITIONS
"Adoption means the date this plan is duly adopted by the Board.
Date"
"Board" means the Company's Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Compensation Committee of the Board.
"Company" means TrustCo Bank Corp NY.
"Director" means a member of the Board of Directors of TrustCo Bank
Corp NY.
"Fair Market means the closing price for shares of Company common stock on
Value" the applicable date as reported on The Nasdaq Stock Market
or such other system as may supersede it, and, if no such
price is reported for the day of grant, the Fair Market Value
shall be determined by reference to such price on the next
preceding day on which such price was reported. If the Stock
is listed on an established stock exchange or exchanges, the
Fair Market Value shall be deemed to be the closing price for
shares of Company common stock on the applicable date on such
stock exchange or exchanges or, if no sale of Stock has been
made on any stock exchange that day, the Fair Market Value
shall be determined by reference to such price for the next
preceding day on which a sale occurred. In the event that no
such price is available, then the Fair Market Value shall be
determined by the Committee in good faith. The purchase price
shall be subject to adjustment only as provided in Section 15
of the Plan.
"Grant Date" as used with respect to a particular Option, means the date
as of which such Option is granted by the Committee pursuant
to the Plan.
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"Option" means the right, granted by the Committee pursuant to
Section 7 of the Plan, to purchase shares of Stock.
"Optionee" means the Director to which an Option is granted by the
Committee pursuant to the Plan, except that employees of
TrustCo Bank Corp NY or its subsidiaries, who are also
Directors, shall not be eligible to receive grants under
this plan.
"Plan" has the meaning set forth in the preamble hereto, and
includes the Plan as it may be amended from time to time.
"Stock" means shares of the TrustCo Bank Corp NY common stock.
"Total and as applied to an Optionee, means that the Optionee; (i) has
Permanent established to the satisfaction of the Committee that the
Disability" Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a
continuous period of not less than 12 months (all within the
meaning of Section 22(e)(3) of the Code); and (ii) has
satisfied any other requirement imposed by the Committee.
SECTION 3: PLAN ADMINISTRATION
The Plan shall be administered by a committee composed of three or more
Directors who are appointed by the Board as the Board's Compensation Committee
and who may be members of the committee appointed to administer the TrustCo
Bank Corp NY Stock Option Plan. The Board may from time to time remove members
from, or add members to, the Committee. Vacancies on the Committee, however
caused, shall be filled by the Board. The Board shall elect one of the
Committee's members as Chairman. The Committee shall hold meetings at such
times and places as it may determine, subject to rules and to procedures not
inconsistent with the provisions of the Plan. A majority of the authorized
number of members of the Committee shall constitute a quorum for the
transaction of business. Acts reduced to or approved in writing by a majority
of the members of the Committee then serving shall be the valid acts of the
Committee. A member of the Committee shall be eligible to be granted Options
under this Plan while a member of the Committee. The Committee shall be vested
with full authority to make such rules and regulations as it deems necessary
or desirable to administer the Plan and to interpret the provisions of the
Plan. Any determination, decision or action of the Committee in connection
with the construction, interpretation, administration or application of the
Plan which have a sound, rational basis shall be final, conclusive and binding
upon all Optionees and any person claiming under or through an Optionee, unless
otherwise determined by the Board.
Any determination decision or action of the Committee provided for in the Plan
may be made or taken by action of the Board if it so determines, with the same
force and effect as if such determination, decision or action had been made or
taken by the Committee. No member of the Committee or of the Board shall be
liable for any determination, decision or action made in good faith with
respect to the Plan or any Option granted under the Plan. The fact that a
member of the Board shall at the time be, or shall theretofore have been or
thereafter may be, a person who has received or is eligible to receive an
Option shall not disqualify him or her from taking part in and voting at any
time as a member of the Board in favor of or against any amendment or repeal
of the Plan.
11
SECTION 4: PLAN EFFECTIVE DATE AND DURATION
This Plan is effective as of the Adoption Date, subject, however, to the Plan's
approval by the Company's shareholders either on or before the Adoption Date of
within the 12 month period following the Adoption Date. If shareholder approval
is not so obtained, all Options granted under this Plan shall automatically be
null and void, ab initio. No Option may be granted under this Plan at any date
which is 10 years or more after the Adoption Date.
SECTION 5: AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time terminate, amend, modify or suspend the Plan,
provided that, without the approval of the shareholders of the Company, no
amendment or modification shall be made by the Board which:
(a) Increases the maximum number of shares as to which Options may be granted
under the Plan;
(b) Alters the method by which the Option price is determined;
(c) Extends any Option for a period longer than 10 years after the Grant Date;
(d) Materially modifies the requirements as to eligibility for participation
in the Plan;
(e) Amends Sections 9(a), 9(b), or 9(c) at intervals more frequently than
once every six months except to the extent necessary to comport with
changes in the Code, the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder; or
(f) Alters this Section 5 so as to defeat its purpose.
Further, no amendment, modification, suspension or termination of the Plan
shall in any manner affect any Option theretofore granted under the plan
without the consent of the Optionee or any person validly claiming under or
through the Optionee.
SECTION 6: STOCK SUBJECT TO THE PLAN
(a) The stock to be issued upon exercise of Options granted under the Plan
shall be TrustCo Bank Corp NY Stock, which shall be made available, at
the discretion of the Board, either from authorized but unissued Stock
or from Stock acquired by the Company, including shares purchased in
the open market. The aggregate number of shares of Stock which may be
issued under or subject to Options granted under this Plan shall not
exceed 200,000 shares. The limitation established by the preceding
sentence shall be subject to adjustment as provided in Section 15 of
the Plan.
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(b) In the event that any outstanding Option or portion thereof under the
Plan for any reason expires or is terminated, the shares of Stock
allocable to the unexercised portion of such Option may again be made
subject to Option under the Plan.
SECTION 7: GRANT OF OPTIONS
The Committee may from time to time, subject to the provisions of the Plan,
grant Options to Directors to purchase shares of Stock allotted in accordance
with Section 9. All Options granted under this Plan shall be "Nonqualified
Stock Options" for purposes of the Code.
SECTION 8: OPTION PRICE
The purchase price per share of each share of Stock which is subject to an
Option shall be 100% of the Fair Market Value of a share of Stock on the date
the Grant Date.
SECTION 9: ELIGIBILITY OF OPTIONEES
(a) Options on 2,000 shares of Stock shall be granted once each calendar
year at a meeting of the Board of Directors held during such calendar
year to each person who is then a Director of the Company, except that
if Counsel to the Company determines in his sole discretion that on
such date the Company is in possession of material non-public
information concerning its affairs, such grant shall be delayed until
the third day on which trading occurs following the public
dissemination of such information or the date of an event which renders
such information immaterial.
(b) The Board may grant additional options to purchase a number of shares
of Stock to be determined by the Board in recognition of services
provided by a Director in his or her capacity as a Director, provided
that such grants are exempt from Section 16(b) of the Securities
Exchange Act of 1934, as amended.
(c) Subject to the terms of the Plan, and subject to review by the Board,
the Committee shall have exclusive jurisdiction (i) to determine the
dates on which, or the time periods during which, the Option may be
exercised, (ii) to determine the purchase price of the shares subject
to each Option in accordance with Section 8 of the Plan and (iii) to
prescribe the form, which shall be consistent with the Plan, of the
instrument evidencing any Options granted under the Plan.
(d) Neither anything contained in the Plan or in any document under the
Plan nor the grant of any Option under the Plan shall confer upon any
Optionee any right to continue as a Director of the Company or limit in
any respect the right of the Company shareholders to terminate the
Optionee's directorship at any time and for any reason.
13
SECTION 10: NON-TRANSFERABILITY OF OPTIONS
No Option granted under the Plan shall be assignable or transferable by the
Optionee other than by will or the laws of descent and distribution, and during
the lifetime of an Optionee the Option shall be exercisable only by such
Optionee.
SECTION 11: TERM AND EXERCISE OF OPTIONS
(a) Each Option granted under the Plan shall terminate on the date which is
10 years after the Grant Date. The Committee at its discretion may
provide further limitations on the exercisability of Options granted
under the Plan. An Option may be exercised only during the continuance
of the Optionee's service as a Director, except as provided in Sections
12 and 13 of the Plan.
(b) A person electing to exercise an Option shall give written notice to
the Company of such election and of the number of shares he or she has
elected to purchase, in such forms as the Committee shall have prescribed
or approved, and shall at the time of exercise tender the full purchase
price of the shares he or she has elected to purchase. The purchase price
shall be paid in full in cash upon the exercise of the Option.
Alternatively, in the Committee's sole discretion, an Optionee may
exercise his or her Option (i) by tendering to the Company shares of Stock
owned by him or her, based on that Stock's Fair Market Value at the date
of exchange or (ii) via the simultaneous exercise of Stock Options and
sale of the Stock acquired pursuant thereto and having a fair market value
equal to the cash exercise price applicable to his or her Option, with the
then fair market value of such stock to be determined in the same manner
as provided in Section 8 of the Plan with respect to the determination of
the fair market value of Stock on the date an Option is granted; provided,
however, that no exercise will be permitted if the Company or the
Committee concludes that the manner of such exercise would, or would
reasonably be expected to, violate Section 402 of the Sarbanes-Oxley Act.
(c) An Optionee or a transferee of an Option shall have no rights as a
stockholder with respect to any shares covered by his or her Option
until the date the stock certificate is issued evidencing ownership of
the shares. No adjustments shall be made for dividends (ordinary or
extraordinary), whether in cash, securities or other property, or
distributions or other rights, for which the record date is prior to
the date such stock certificate is issued, except as provided in
Section 15 hereof.
SECTION 12: TERMINATION OF DIRECTORSHIP
If an Optionee's status as a Director ceases for any reason, any Option granted
to him or her under the Plan shall terminate, and all rights under the Option
shall cease, except:
(a) In the case of a Stock Option held by an Optionee that is not subject
to Total and Permanent Disability, such Stock Option shall terminate 18
months after the termination of the Optionee's status as Director.
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(b) In the case of a Stock Option held by an Optionee who is subject to
Total and Permanent Disability, such Stock Option shall terminate upon
its expiration date.
(c) In the case of the Optionee's death while serving as a director, such
Stock Option shall terminate eighteen months after the date of death.
(d) The foregoing notwithstanding, no Option shall be exercisable after its
expiration date.
SECTION 13: DEATH OF AN OPTIONEE
If an Optionee dies after ceasing to serve as a Director but within the period
during which he or she could have exercised the Option under Section 12 of the
Plan, then the Option may be exercised by the executors or administrators of
the Optionee's estate, or by any person or persons who have acquired the Option
directly from the Optionee by bequest or inheritance, within a period
prescribed by the Committee after the Optionee's death, except that no Option
shall be exercisable after its expiration date.
SECTION 14: MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS
Subject to the terms and conditions and within the limitations of the Plan, the
Committee may modify, extend or renew outstanding Options granted under the
Plan or accept the surrender of outstanding Options (to the extent not
theretofore exercised) and grant new Options in substitution therefor. Without
limiting the generality of the foregoing, the Committee may grant to an
Optionee, if he or she is otherwise eligible and consents thereto, a new or
modified Option in lieu of an outstanding Option for a number of shares, at an
exercise price and for a term which are greater or lesser than under the
earlier Option, or may do so by cancellation and regrant, amendment,
substitution or otherwise, subject only to the general limitations and
conditions of the Plan. The foregoing notwithstanding, no modification of an
Option shall, without the consent of the Optionee, alter or impair any rights
or obligations under any Option theretofore granted under the Plan.
SECTION 15: CHANGES IN CAPITALIZATION
(a) In the event that the shares of the Company, as presently constituted,
shall be changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation
(whether by reason of merger, consolidation, recapitalization,
reclassification, stock dividend, stock split, combination of shares or
otherwise) or if the number of such shares of stock shall be increased
through the payment of a stock dividend, then, subject to the provisions of
Subsection (c) below, there shall be substituted for or added to each share
of stock of the Company which was theretofore appropriated, or which
thereafter may become subject to an Option under the Plan, the number and
kind of shares of stock or other securities into which each outstanding
share of the stock of the Company shall be so changed or for which each
such share shall be exchanged or to which each such share shall be
entitled, as the case may be. Outstanding Options shall also be
appropriately amended as to price and other terms, as may be necessary to
reflect the foregoing events.
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(b) If there shall be any other change in the number or kind of the
outstanding shares of the stock of the Company, or of any stock or
other securities into which such stock shall have been changed, or for
which it shall have been exchanged, and if the Board or the Committee
(as the case may be), shall, in its sole discretion, determine that
such change equitably requires an adjustment in any Option which was
theretofore granted or which may thereafter be granted under the Plan,
then such adjustment shall be made in accordance with such
determination.
(c) A dissolution or liquidation of the Company or a merger or a
consolidation in which the Company is not the surviving corporation,
shall cause each outstanding Option to terminate, except to the extent
that another corporation may and does in the same transaction assume
and continue the option or substitute its own Options. In either event,
the Board or the Committee (as the case may be) shall have the right to
accelerate the time within which the Option may be exercised.
(d) Fractional shares resulting from any adjustment in Options pursuant to
this Section 15 may be settled as the Board or the Committee (as the case
may be) shall determine.
(e) To the extent that the foregoing adjustments relate to stock or
securities of the Company such adjustments shall be made by the
Committee, whose determination, which has a sound, rational basis, in
that respect shall be final, binding and conclusive. Notice of any
adjustment shall be given by the Company to each holder of an Option
which shall have been so adjusted.
(f) The grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure, to merge, to consolidate, to dissolve, to liquidate
or to sell or transfer all or any part of its business or assets.
SECTION 16: LISTING AND REGISTRATION OF SHARES
(a) No Option granted pursuant to the Plan shall be exercisable in whole or
in part if at any time the Board or the Committee (as the case may be)
shall determine in its discretion that the listing, registration or
qualification of the shares of Stock subject to such Option on any
securities exchange or under any applicable law, or the consent or
approval of any governmental regulatory body, is necessary or desirable
as a condition of, or in connection with, the granting of such Option
or the issue of shares thereunder, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board.
(b) If a registration statement under the Securities Act of 1933 with
respect to the shares issuable upon exercise of any Option granted
under the Plan is not in effect at the time of exercise, as a condition
of the issuance of the shares the person exercising such Option shall
give the Committee a written statement, satisfactory in form and
substance to the Committee, that he or she is acquiring the shares for
his or her own account for investment and not with a view to their
distribution. The Company may place upon any stock certificate for
shares issuable upon exercise of such Option the following legend or
such other legend as the Committee may prescribe to prevent disposition
of the shares in violation of the Securities Act of 1933 or other
applicable law:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT")
AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THEM UNDER THE ACT OR A
WRITTEN OPINION OF COUNSEL FOR THE COMPANY THAT REGISTRATION
IS NOT REQUIRED.
SECTION 17: MISCELLANEOUS
The Plan shall be administered in the State of New York and the validity,
construction, interpretation, administration and effect of the Plan shall be
determined solely in accordance with the laws of that State.
IN WITNESS WHEREOF, the Company has caused this Amendment and
Restatement of the Plan to be executed on this 1st day of March, 2004.
TRUSTCO BANK CORP NY
By: /s/ Robert J. McCormick
---------------------------------------
Title President and Chief Executive Officer
-------------------------------------
17
Exhibit 5.1
18
LEWIS, RICE & FINGERSH, L.C.
ATTORNEYS AT LAW
500 N. BROADWAY, SUITE 2000
ST. LOUIS, MISSOURI 63102-2147
TEL (314) 444-7600 WWW.LRF.COM FAX (314) 241-6056
May 20, 2004
TrustCo Bank Corp NY
320 State Street
Schenectady, New York 12305
Re: Registration on Form S-8 of 200,000 Shares of Common
Stock for Issuance Pursuant to the 2004 TrustCo Bank Corp NY
Directors Stock Option Plan
Ladies and Gentlemen:
In connection with the registration with the Securities and Exchange
Commission of 200,000 shares of common stock, $1.00 par value per share (the
"Securities"), of TrustCo Bank Corp NY (the "Company"), you have requested that
we furnish you with our opinion as to the legality of the issuance of the
Securities in connection with the 2004 TrustCo Bank Corp NY Directors Stock
Option Plan (the "Plan").
As counsel to the Company, we have participated in the preparation of
the Registration Statement on Form S-8 under the Securities Act of 1933, as
amended (the "Registration Statement") with respect to the Securities. We have
examined and are familiar with the Company's Articles of Incorporation, Bylaws,
each as amended, records of corporate proceedings, the Registration Statement,
the Plan and such other documents and records as we have deemed necessary for
purposes of this opinion.
Based on the foregoing, we are of the opinion that the Securities have
been duly and validly authorized and will, when issued as contemplated in the
Plan, be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
LEWIS, RICE & FINGERSH, L.C.
/s/ LEWIS, RICE & FINGERSH, L.C.
19
Exhibit 15.1
20
May 18, 2004
TrustCo Bank Corp NY
Glenville, New York
Re: Registration Statement on Form S-8 related to the 2004 TrustCo Bank Corp NY
Directors Stock Option Plan
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our report dated April 13, 2004 related to our
review of interim financial information.
Pursuant to Rule 436 under the Securities Act of 1933 (the "Act"), such report
is 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 LLP
Albany, New York
21
Exhibit 23.1
22
Independent Auditors' Consent
The Board of Directors
TrustCo Bank Corp NY:
We consent to incorporation by reference in the registration statement on Form
S-8 related to the 2004 TrustCo Bank Corp NY Directors Stock Option Plan to be
filed by TrustCo Bank corp NY with the Securities and Exchange Commission of
our report dated February 20, 2004, with respect to the consolidated statements
of condition of TrustCo Bank Corp NY and subsidiaries as of December 31, 2003
and 2002, 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, 2003, which report appears in the December 31, 2003
annual report on Form 10-K of TrustCo Bank Corp NY.
/s/ KPMG LLP
Albany, New York
May 18, 2004
23
Exhibit 24.1
24
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ Robert A. McCormick
------------------------
Robert A. McCormick
25
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ Barton A. Andreoli
-----------------------
Barton A. Andreoli
26
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ Anthony J. Marinello, M.D., PhD
------------------------------------
Anthony J. Marinello, M.D., PhD
27
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ William D. Powers
-----------------------
William D. Powers
28
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ Joseph A. Lucarelli
------------------------
Joseph A. Lucarelli
29
POWER OF ATTORNEY
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
for
2004 TRUSTCO BANK CORP NY
DIRECTORS STOCK OPTION PLAN
of
TRUSTCO BANK CORP NY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints Robert T. Cushing and Robert M. Leonard,
and each of them, the true and lawful attorneys-in-fact and agents for him and
in his name, place or stead, in any and all capacities, to sign and file, or
cause to be filed, with the Securities and Exchange Commission (the
"Commission"), any registration statement or statements on Form S-8 under the
Securities Act of 1933, as amended, relating to the issuance of shares of any
class of stock or other securities of TrustCo Bank Corp NY in connection with
the 2004 TrustCo Bank Corp NY Directors Stock Option Plan, or the issuance of
any interests in such plan, and any and all amendments and supplements thereto,
before or after effectiveness of such statements, and any and all other
documents required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done as
fully and to all intents and purposes as the undersigned might or could do in
person, and ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Dated: May 18, 2004
/s/ William J. Purdy
---------------------
William J. Purdy