Exhibit 10(w)
AMENDMENT NO. 2
AMENDED AND RESTATED 1995 TRUSTCO BANK CORP NY
STOCK OPTION PLAN
WHEREAS, TrustCo Bank Corp NY (the "Company") previously established
the Amended and Restated 1995 TrustCo Bank Corp NY Stock Option Plan ("Plan")
and;
NOW, THEREFORE, TrustCo Bank Corp NY does, effective as of January 1,
2005, amend the Plan as follows:
I.
Paragraph 4 of Section 8 of the Plan is deleted in its entirety and
replaced with the following:
4. Acceleration and the immediate right to exercise options in full
will occur upon a Change in Control of the Company, which is
defined to include any one or more the following:
(a) any individual, corporation (other than TrustCo Bank Corp NY
or Trustco Bank hereinafter collectively referred to as the
"Companies"), partnership, trust, association, pool,
syndicate, or any other entity or group of persons acting in
concert becomes the beneficial owner, as that concept is
defined in Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934,
of securities of either of the Companies possessing 20% or
more of the voting power for the election of directors of
either of the Companies; or
(b) there shall be consummated any consolidation, merger or other
business combination involving either of the Companies or the
securities of either of the Companies in which holders of
voting securities immediately prior to such consummation own,
as a group, immediately after such consummation, voting
securities of either of the Companies (or, if either of the
Companies does not survive such transaction, voting securities
of the entity or entities surviving such transaction) having
60% or less of the total voting power in an election of
directors of either of the Companies (or such other surviving
entity or entities); or
(c) during any period of two consecutive years, individuals who at
the beginning of such period constitute the directors of
either of the Companies cease for any reason to constitute at
least a
majority thereof unless the election, or nomination for
election by either of the Companies' shareholders, of each new
director of either of the Companies was approved by a vote of
at least two-thirds of the directors of either of the
Companies then still in office who were directors of either of
the Companies at the beginning of any such period; or
(d) removal by the stockholders of all or any of the incumbent
directors of either of the Companies other than a removal for
cause; or
(e) there shall be consummated at any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of
either of the Companies to a party which is not controlled by
or under common control with either of the Companies; or
(f) an announcement of any of the events described in paragraphs
(a) through (e) above, including but not limited to a press
release, public statement or filing with federal or state
regulators.
Upon exercise of an Option during the 30-day period prior to the
anticipated date of consummation of a Change in Control, the Participant
exercising the Option may request by written notice to the Company to
receive, in lieu of the receipt of Stock upon the exercise of the
Option, an amount in cash equal to the excess of the aggregate Value (as
defined below) of the shares of Stock covered by the Option or portion
thereof surrendered determined on the date the Option is exercised, over
the aggregate exercise price of the Option (such excess is referred to
herein as the "Aggregate Spread") which amount, in the event of a Change
in Control as described in (f) above, would be paid no later than 15
days prior to the date of consummation of such Change in Control and
such request may be revoked up to that date; provided, however, and
notwithstanding any other provision of this Plan, if the end of such
30-day period prior to the anticipated date of consummation of a Change
in Control is within six months of the date of grant of an Option held
by a Participant who is an officer of the Company (for purposes of
Section 16(b) of the Exchange Act), such Option would be canceled in
exchange for a cash payment to the Participant equal to the Aggregate
Spread on the day which is six months and one day after the date of
grant of such Option. The Company, in its sole and absolute discretion,
may elect whether to grant or deny such request, and if it grants such
request, such Participant will be deemed to have elected to receive cash
in lieu of the receipt of Stock upon exercise of his or her Option. As
used in this Section 12(a)(iii) the term "Value" means the higher of (i)
the highest Fair Market Value during the 30-day period prior to the
anticipated date of consummation of a Change in Control, and (ii) if the
Change in Control is the result of a transaction or series of
2
transactions described in paragraphs (a) or (b) above, the highest price
per share of the Stock paid in such transaction or series of
transactions (which in the case of paragraph (b) shall be the highest
price per share of the Stock as reflected in a Schedule 13D by the
person having made the acquisition).
II.
Notwithstanding any other provision of the Plan to the contrary, if
any provision of the Plan permits a Participant, at his or her election, to
receive a cash settlement of Options or other awards under the Plan, or
requires the Company to pay a cash settlement of Options or awards under the
Plan, the Participant shall be entitled to receive the cash settlement, and
the Company shall be obligated to pay the cash settlement, only if the
Company determines, in its sole and absolute discretion, to make such
payment.
IN WITNESS WHEREOF, the Company has caused this Amendment to be adopted
as of this 28th day of December, 2005.
TRUSTCO BANK CORP NY
By: /s/ Robert J. McCormick
---------------------------
Robert J. McCormick
President and
Chief Executive Officer