Registration No. 333 -_______________
As filed with the Securities and
Exchange Commission on November 26, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LONG ISLAND BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 11-3198508
(State of Incorporation) (IRS Employer
Identification No.)
201 Old Country Road
Melville, New York 11747-2724
(Address of Principal Executive Offices)
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Long Island Bancorp, Inc.
Non-Employee Directors Stock Compensation Plan
(Full Title of the Plan)
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John J. Conefry, Jr. Copies to:
Chairman of the Board Mel M. Immergut
and Chief Executive Officer Milbank, Tweed, Hadley &
LONG ISLAND BANCORP, INC. McCloy
1 Chase Manhattan Plaza
201 Old Country Road New York, New York
Melville, New York 11747-2724 10005-1413
(212) 530-5000
(516) 547-2000
(Name, Address and Telephone
Number of Agent for Service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. x
Total Number of pages ______
Exhibit Index on Page ______
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price (3) Fee
- --------------------- ------------------------ ------------------------- ------------------------ ========================
Deferred Compensation
Obligations (1) $2,000,000.00 100% $2,000,000.00 $606.00
- ---------------------- ------------------------ ------------------------- ------------------------ ========================
- ---------------------- ------------------------ ------------------------- ------------------------ ========================
Common Stock, par value
$0.01 (2) (2) (2) (2)
per share
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(1) The Deferred Compensation Obligations are unsecured
obligations of Long Island Bancorp, Inc. to pay deferred
compensation in the future in accordance with the terms of the
Non-Employee Directors Stock Compensation Plan.
(2) The number of shares of Common Stock is necessarily
indeterminate but will be the number of shares which are
issued to satisfy obligations of Long Island Bancorp, Inc.
under the Plan.
(3) Estimated solely for the purpose of determining the
registration fee.
PART I
Items 1. and 2. Plan Information / Registrant Information and
Employee Plan Annual Information
This Registration Statement relates to (a) the registration of
interests in Long Island Bancorp, Inc. ("the Company" or "the Registrant")
Non-Employee Directors Stock Compensation Plan ("the Plan") in which
non-employee members of the Board of Directors of the Company ("Eligible
Directors") are permitted to defer all or a portion of their annual cash
compensation to an account, payable upon termination of their services as
Eligible Directors in cash or deferred shares of Long Island Bancorp, Inc.
common stock ("Common Stock"), and (b) an indeterminate amount of Common Stock
to be issued under the Plan. The purpose of the Plan is to strengthen the
mutuality interest between Eligible Directors and the Company's shareholders.
The Plan is intended to reinforce the Company's ability to attract, retain and
motivate Eligible Directors through the provision of reasonable and competitive
compensation opportunities.
The document(s) containing the information specified in Part I
of Form S-8 will be sent or given to participating Eligible Directors as
specified by Rule 428 (b) (1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents and the documents incorporated by reference
herein pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10 (a) of the Securities Act.
In addition, the Registrant will provide without charge to any person to whom
this Registration Statement relates, a quarterly account statement providing the
amount and status of their accounts.
PART II.
Item 3. Incorporation of Documents by Reference
All documents filed by the Company pursuant to Sections 13 (a)
and (c), 14 or 15 (d) of the Exchange Act of 1934, as amended (the "Exchange
Act"), after the date hereof and prior to the termination of the Plan shall be
deemed to be incorporated by reference into this Registration Statement and to
be part hereof from the filing of such documents. Any statement contained in
this Registration Statement, or in a document incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein, or in any other
subsequently filed document which also is incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
The following documents filed with the Securities Exchange
Commission are incorporated by reference in this Registration Statement:
(a) the Annual Report on Form 10-K of the Long Island
Bancorp, Inc. for the year ending September 30, 1996; and
(b) the Quarterly Reports on Form 10-Q for the quarters ending
December 31, 1996, March 31, 1997 and June 30,1997 and Current Reports on Form
8-K dated October 22, 1996, December 19,1996, February 18, 1997, March 25, 1997,
April 22, 1997, June 24, 1997, September 23, 1997 and October 21, 1997, filed
pursuant to Section 13 of the Exchange Act.
Item 4. Description of Securities
Under the Plan, the Company will provide Eligible Directors
the opportunity to enter into agreements for the deferral of their director
fees. The amount to be deferred by each Eligible Director will be determined in
accordance with the Plan and the Eligible Director's election and will be
credited to an account in the name of each Eligible Director (the "Account"). An
Eligible Director's Account will be adjusted to reflect the gains and losses of
either of two benchmark investments, as selected by the Eligible Director: the
interest payable from time to time on a passbook savings account as available to
customers of The Long Island Savings Bank, FSB or the investment experience of
shares of Common Stock. All obligations under the Plan are payable in United
States dollars, except that deferrals that have been notionally invested in
Common Stock may be paid, in the discretion of the Board of Directors of the
Company, in Common Stock in lieu of cash. Each obligation to pay deferred
compensation will be payable on a date selected by each Eligible Director after
his or her services as a director has ended. No amounts payable under the Plan
may be assigned, transferred, pledged or otherwise encumbered.
The Plan may be amended, suspended or terminated, in whole or
in part, by the Board of Directors of the Company without impairment of any
rights of any Eligible Director which have accrued as of the date of such
action; provided, however, that the Plan may not be amended upon the occurrence
of a change of control as defined in the Plan.
No trust will be maintained under the Plan and the obligations
of the Company to pay out Accounts will be unsecured general obligations. The
Company is a holding company, and as such the Company, and hence Company
creditors including Eligible Directors, may not receive any distribution of the
assets of any subsidiary upon its liquidation or reorganization or otherwise
until the prior claims of creditors of the subsidiary have been satisfied,
except distributions in satisfaction of claims of the Company itself as a
creditor of such subsidiary.
Item 5. Interest of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officer
Section 145 of the Delaware General Corporation Law, inter
alia, empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such person against expense (including attorney's fees) actually
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the shareholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him, and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
Section 5.1 of the Bylaws of the Company provides for
indemnification of the directors and officers of the Company to the full extent
permitted by law, as now in effect or later amended. In addition, the Bylaws
provide for indemnification against expenses incurred by a director or officer
to be paid by the Company at reasonable intervals in advance of the final
disposition of such action, suit or proceeding; provided, however, that, if
required by the Delaware General Corporation Law, an advancement of expenses
will be made only upon receipt of an undertaking by or on behalf of the director
or officer to repay such amount if it shall be ultimately determined that he is
not entitled to be indemnified by the Company. The Bylaws further provide for a
contractual cause of action on the part of directors and officers of the Company
with respect to indemnification claims which have not been paid by the Company.
Article Six of the Company's Certificate of Incorporation
limits under certain circumstances the liability of the Company's directors for
a breach of their fiduciary duty as directors. These provisions do not eliminate
the liability of a director (i) for a breach of the director's duty of loyalty
to the Company or its shareholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (relating to the
declaration of dividends and purchase of redemption of shares in violation of
the Delaware General Corporation Law), or (iv) for any transaction from which
the director derived an improper personal benefit.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. List of Exhibits
The following exhibits are filed with or incorporated by
reference into this Registration Statement on form S-8 (numbering corresponds to
Exhibit Table in Item 601 of Regulation S-K):
4.1 The Long Island Bancorp, Inc., Non-Employee Directors Stock
Compensation Plan
5 Opinion of Milbank, Tweed, Hadley & McCloy
23(a) Consent (Milbank, Tweed Hadley & McCloy (included as part of
Exhibit 5)
23(b) Consent - KMPG Peat Marwick
24 Power of Attorney (contained on the signature page)
99 (i) Restated Bylaws of the Registrant. Incorporated by reference to Exhibits
filed with the Registration Statement on Form S-1 Registration No. 33-73694.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10 (a)
(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
(iii) To include any material information with respect to the
Plan not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain undistributed at the
termination of the Plan.
(4) That for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13 (a) or
15 (d) of the Exchange Act 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
LONG ISLAND BANCORP, INC. 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 Melville, New York on the 25th day of November,
1997.
LONG ISLAND BANCORP, INC.
By:__________________________
John J. Conefry, Jr.
Chairman of the Board and
Chief Executive Officer
Each person whose individual signature appears below hereby
makes, constitutes and appoints John J. Conefry, Jr. to sign for such person and
in such person's name and capacity indicated below, any and all amendments to
this Registration Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
Name Title Date
/s/ John J. Conefry, Jr. Chairman of the Board
John J. Conefry, Jr. and Chief Executive Officer 11/25/97
/s/ Lawrence W. Peters President, Chief Operating 11/25/97
Lawrence W. Peters Officer and Director
/s/ Mark Fuster 11/25/97
Mark Fuster Chief Financial Officer
/s/ Bruce M. Barnet Executive Vice President and 11/25/97
Bruce M. Barnet Director
/s/ Clarence M. Buxton Director 11/25/97
Clarence M. Buxton
/s/ Edwin M. Canuso Director 11/25/97
Edwin M. Canuso
/s/ Richard F. Chapdlaine Director 11/25/97
Richard F. Chapdelaine
/s/ Brian J. Conway Director 11/25/97
Brian J. Conway
/s/ Robert Conway Director 11/25/97
Robert Conway
/s/ Federick De Matteis Director 11/25/97
Frederick DeMatteis
/s/ George R. Irvin Director 11/25/97
George R. Irvin
/s/ Herbert J. McCooey Director 11/25/97
Herbert J. McCooey
/s/ Dr. James B. Tormey Director 11/25/97
Dr. James B. Tormey
/s/ Leo J. Waters Director 11/25/97
Leo J. Waters
/s/ Donald D. Wenk Director 11/25/97
Donald D. Wenk
/s/ Troy J. Baydala Director Emeritus 11/25/97
Troy J. Baydala
EXHIBIT INDEX
Exhibit
No. Description Method of Filing
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4.1 The Long Island Filed herewith
Bancorp, Inc.,
Non-Employee Directors
Stock Compensation Plan
5 Opinion of Milbank, Filed herewith
Tweed, Hadley & McCloy
23 (a) Consent Milbank, Tweed Hadley & McCloy
(included as part of Exhibit 5)
23 (b) Consent KMPG Peat Marwick
24 Power of Attorney (Contained on the signature
page)
99 (i) Restated Bylaws of Long Incorporated by reference to
Island Bancorp, Inc. Exhibits filed with the
Registration Statement on
Form S-1, Registration
No. 33-73694
EXHIBIT 4.1
Long Island Bancorp, Inc. Non-Employee Directors Stock Compensation Plan
LONG ISLAND BANCORP, INC.
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Non-Employee Directors Stock Compensation Plan
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Amended and Restated
September 23, 1997
Table of Contents
Topic Page
Section 1. Purpose; Establishment of Plan.... . . ................. 1
Section 2. Definitions............................................. 1
Section 3. Administration.......................................... 4
Section 4. Deferred Compensation................. . ............... 4
Section 5. Change in Control....................................... 7
Section 6. Unfunded Status........................... ............. 8
Section 7. General Provisions...................................... 8
FORM-S81
LONG ISLAND BANCORP, INC.
Non-Employee Directors Stock Compensation Plan
Section 1. Purpose; Establishment of Plan
The purpose of the Non-Employee Directors Stock Compensation Plan (the "Plan")
is to strengthen the mutuality of interest between non-employee Directors of
Long Island Bancorp, Inc. (the "Company") and the Company's shareholders by
permitting the deferral of all or a portion of the annual cash compensation
received by non-employee members of the Board of Directors (the "Board") into
Deferred Shares of Company Stock.
The Plan was adopted, effective June 24, 1997, to permit Eligible Directors of
the Company to elect such deferral of compensation into Deferred Shares of
Company Stock in the manner described below. The Plan is intended to reinforce
the Company's ability to attract, retain and motivate qualified Directors
through the provision of reasonable and competitive compensation opportunities.
The Plan was amended and restated, effective August 26, 1997, to merge with the
unfunded deferred compensation plan adopted by The Long Island Savings Bank, FSB
as of October 1, 1976, which provides deferred benefits to eligible Directors of
the Bank (the "Bank Plan"). The Bank Plan is amended and superseded by this
Plan, and all amounts payable under the Bank Plan shall be paid by and under the
terms of the Plan. Amounts credited to the memorandum account of each Director
under the Bank Plan as of July 31, 1997 shall be deemed transferred to an
Interest Bearing Account in respect of each such Director and interest shall be
credited thereon in accordance with Section 4.3(b) after such date.
Section 2. Definitions
For purposes of the Plan, the following terms shall have the meanings set forth
below:
2.1 "Account" means an account established to record an Eligible Director's
interest under the Plan as described in Section 4.
2.2 "Bank" means The Long Island Savings Bank, FSB.
2.3 "Beneficiary" means the person or persons designated by the Eligible
Director to receive distribution(s) under this Plan in the event of the
Eligible Director's death or permanent disability.
2.4 "Board of Directors" means the Board of Directors of the Company and
the Bank.
2.5 "Change of Control" means (a) a change in control of the Bank or the
Company of a nature that would be required to be reported in response
to Item 1 of the current report on form 8-K, as in effect on the date
hereof, pursuant to Section 13 or 15(d) of the Exchange Act; (b) a
change in control of the Bank or the Company within the meaning of 12
U.S.C. '1817(i), the Change in Bank Control Act, and 12 C.F.R. '574.4
of the Acquisition of Control of Savings Association regulations of the
office of Control of Savings Association regulations of the Office of
Thrift Supervision; (c) individuals who constitute the Board as of the
effective date of the Plan (the "Incumbent Board") cease for any reason
to constitute at least a majority thereof, provided that any person
becoming a Director subsequent to the effective date of the Plan whose
election was approved by a vote of at least three-quarters of the
Directors then comprising the Incumbent Board, or whose nomination for
election by the Company's shareholders, as the case may be, was
approved by the Company's nominating committee then serving under the
Board, shall be, for purposes of this clause (c), considered as though
he or she was a member of the Incumbent Board (but excluding, for this
purpose, any such individual whose initial assumption of office occurs
as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual threatened solicitation of proxies or
consents); (d) approval by the shareholders of the Bank or the Company,
as the case may be, of a reorganization, merger or consolidation, or
the consummation of any such reorganization, merger or consolidation,
other than, in any case, a reorganization, merger or consolidation with
respect to which all or substantially all of the individuals and
entities who were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of the Voting Interest in the
Company beneficially own, directly or indirectly, immediately after
such reorganization, merger or consolidation more than eighty percent
(80%) of the Voting Interest of the corporation or other entity
resulting from such reorganization, merger or consolidation in
substantially the same proportions as their respective ownership,
immediately prior to such reorganization, merger or consolidation, of
the Voting Interest in the Company; (e) approval by the shareholders of
the Bank or the Company, as the case may be, of (i) a complete
liquidation or dissolution of the Bank or the Company, or (ii) the sale
or other disposition of all or substantially all of the assets of the
Company, or the occurrence of any such liquidation, dissolution, sale
or other disposition, other than, in any case, to a Subsidiary,
directly or indirectly; of the Company, or any Affiliate; and/or (f)
the solicitation of proxies from shareholders of the Company by someone
other than the current management of the Company and without the
approval of the Board, seeking shareholder approval of a plan of
reorganization, merger or consolidation of the Bank and/or the Company
with one or more corporations as a result of which the shareholders'
interests in the Bank and/or the Company are actually exchanged for or
converted into securities not issued by the Bank and/or the Company.
2.6 "Company" means Long Island Bancorp, Inc., a Delaware corporation or any
successor corporation.
2.7 "Compensation" means (a) the aggregate monetary value of the annual
retainer fees earned by an Eligible Director for service as a member of
the Board of Directors (the "Board") of the Company and/or the Bank;
and (b) the annual retainer fee, if any, earned by an Eligible Director
for service as the Chairman or member of a committee of the Board of
the Company and/or the Bank; and (c) and any meeting fees earned by an
Eligible Director for attendance at meetings of the Board of the
Company and/or the Bank and any of their committees during any calendar
year.
2.8 "Director" means any member of the Board of Directors of the Company
and/or the Bank, whether or not such member is an Eligible Director.
2.9 "Deferred Stock Account" means an account established to record such
Eligible Director's interest under the Plan related to Deferred Shares
and any additional credits thereto as provided in Section 4.3(a).
2.10 "Deferred Share" means a share of Company Stock which has been deferred
by an Eligible Director until a certain date(s) or event(s) in the
future (but in no case, a date or event later than the date upon which
the Eligible Director ceases to be a Director) in lieu of such Eligible
Director receiving cash compensation for services rendered as a
Director in the current period.
2.11 "Disability" means an illness or injury that is expected to be
permanent and which renders a Director unable to carry out his or her
duties as determined by the Board in its sole discretion.
2.12 "Eligible Director" means a member of the Board of Directors of the
Company and/or the Bank who is not currently an employee of the Company
and/or the Bank.
2.13 "Exchange Act" means the Securities Exchange Act of 1934, as in effect
and as amended from time to time, or any successor statute thereto,
together with any rules, regulations and interpretations promulgated
thereunder or with respect thereto, as the same may be in effect from
time to time.
2.14 "Fair Market Value" means the closing price of a Share as reported by
the principal stock exchange upon which Shares of Company Stock are
listed and traded on the date which is the nearest business day
preceding the date on which such value is to be determined.
2.15 "Interest Bearing Account" means an account established to record an
Eligible Director's interest under the Plan not credited to the
Deferred Stock Account and any additional interest credits thereto as
provided in Section 4.3(b).
2.16 "Plan" means the Long Island Bancorp, Inc. Non-Employee Directors Stock
Compensation Plan.
2.17 "Retirement" means voluntary or involuntary termination of the Eligible
Director from active service on the Board on or after the attainment of
age 65.
2.18 "Share" or "Shares" means a share(s) of Stock.
2.19 "Stock" means the common stock, $0.01 par value, of the Company.
Section 3. Administration
3.1 The Plan shall be administered by the Board of Directors of the
Company. The Board shall have full power and authority to interpret,
construe and administer the Plan and to review each Director's
eligibility to participate in the Plan, and the Board's interpretations
and constructions of the Plan and actions thereunder shall be binding
and conclusive on all persons and for all purposes.
3.2 The Board shall establish and maintain Plan records and may arrange for
the engagement of consultants or legal counsel, and make use of such
agents and other Company personnel, as it requires or deems advisable
for purposes of the Plan. The Board may rely upon the written opinion
of such consultants and counsel and may delegate to any agent, member
of the Board or employee of the Company, its authority to perform any
act hereunder, including without limitation, those matters involving
the exercise of discretion, provided that such delegation shall be
subject to revocation at any time.
Section 4. Deferred Compensation
4.1 Election to Defer. On or before December 31 of any calendar year, an
Eligible Director may elect to defer receipt of all or any part of any
Compensation payable in respect of the calendar year following the year
in which such election is made, and to have such amounts credited, in
whole or in part, to the Eligible Director's Account in such deemed
investments as the Eligible Director shall elect under Section 4.3
hereof. Notwithstanding the foregoing, any Eligible Director may elect,
prior to October 1, 1997, to defer payment of all or any portion of his
or her Compensation for 1997 which has not yet been received. Any
person who shall become an Eligible Director during any calendar year
may elect, not later than the 30th day after his or her term as a
Director begins, to defer payment of all or any portion of his or her
Compensation payable for the balance of the calendar year following
such election.
4.2 Method of Election. A deferral election shall be made by written notice
filed with the Corporate Secretary of the Company in such form as shall
be satisfactory to the Board. Such election shall continue in effect
(including with respect to Compensation payable for subsequent calendar
years) unless and until the Eligible Director revokes or modifies such
election by written notice filed with the Corporate Secretary of the
Company. Any such revocation or modification of a deferral election
shall become effective as of the end of the calendar quarter in which
such notice is given and only with respect to Compensation payable for
services rendered thereafter. If the effect of such revocation or
modification of a deferral election is only to change that amount of
deferred Compensation that would otherwise have been credited to the
Account, it shall in no event become effective earlier than three
months after it is received by the Corporate Secretary. Amounts
credited to the Eligible Director's Account prior to the effective date
of any such revocation or modification of a deferral election shall not
be affected by such revocation or modification and shall be maintained
and distributed in accordance with the otherwise applicable terms of
the Plan. An Eligible Director who has revoked an election to
participate in the Plan may file a new election to defer Compensation
payable for services to be rendered in the calendar year following the
year in which such election is filed.
4.3 Account. The Deferred Compensation of an Eligible Director shall be
allocated to such Director's Deferred Stock Account or Interest Bearing
Account in the amounts determined by the Eligible Director as provided
in (c) hereof.
(a)Deferred Stock Account. Any deferred Compensation allocated to
the Deferred Stock Account shall be deemed to be invested in a
number of Shares equal to the quotient of such Compensation divided
by the Fair Market Value on the date the Compensation then being
allocated to the Deferred Stock Account would otherwise have
been paid. Whenever a dividend other than a dividend payable
in the form of Shares is declared with respect to the Deferred
Shares,the number of Shares in the Eligible Director's Deferred
Stock Account shall be increased by the number of Shares determined
by dividing (i) the product of (A) the number of Shares in the
Eligible Director's Deferred Stock Account on the related
dividend record date, and (B) the amount of any cash dividend
declared by the Company on one Share (or, in the case of any
dividend distributable in property other than Shares,the per share
value of such dividend, as determined by the Company for purposes
of income tax reporting), by (ii) the Fair Market Value on the
related dividend payment date. In the case of any dividend
declared on Shares which is payable in Shares,the Eligible
Director's Deferred Stock Account shall be increased by the
number of Shares equal to the product of(i) the number of Shares
credited to the Eligible Director's Deferred Stock Account on the
related dividend record date, and (ii) the number of shares
(including any fraction thereof calculated to the fourth decimal
place) distributable as a dividend on one Share. In the event of
any stock split,stock dividend,recapitalization,reorganization
or other corporate transaction affecting the capital structure of
the Company,the Board of Directors shall make such adjustments
to the number of Shares credited to each Eligible Director's
Deferred Stock Account as the Board of Directors shall deem
necessary or appropriate to prevent the dilution or enlargement of
such Eligible Director's rights.
(b) Interest Bearing Account. Any amounts allocated to the
Interest Bearing Account shall be deemed to be credited
quarterly with hypothetical interest at the current passbook
rate offered by the Bank to its customers from time to time or
such other rate of interest as the Board of Directors may from
time to time prescribe.
(c) Election of Deemed Investments. An Eligible Director may elect to
have all or any portion of amounts deferred under the Plan allocated
to the Deferred Stock Account or Interest Bearing Account maintained
under such Eligible Director's Account. Such election shall be
made by written notice filed with the Corporate Secretary of the
Company in such form as shall be satisfactory to the Board. Such
election shall continue in effect until modified by the Eligible
Director by written notice filed with the Corporate Secretary
of the Company;provided, however, that no such modification shall
be effective without the prior approval of the Board of Directors or
the Compensation Committee of the Board of Directors; and provided
further that an Eligible Director's election shall not be modified
more often than once each calendar month. A modification of an
election shall be effective as of the first day of the month next
following approval of such modification by the Board of Directors
or the Compensation Committee of the Board of Directors.
4.4 Distribution Election. At the time an Eligible Director makes a
deferral election pursuant to Section 4.1, the Eligible Director shall
also file with the Corporate Secretary of the Company a written
election (a "Distribution Election") with respect to whether:
(i) a distribution of the Eligible Director's Account shall
commence as soon as practicable following the first business day of the
calendar month following the date on which the Eligible Director ceases
to be a Director or on the first business day of any calendar year
following the calendar year in which the Eligible Director ceases to be
a Director, or on such other date as is specified by the Eligible
Director at the time of the related deferral election.
(ii) such distribution shall be in one lump payment or in such
number of annual installments (not to exceed ten) as the Eligible
Director may designate.
The amount of any installment payment shall be determined by
multiplying the number of Shares and/or cash (as the case may be)
credited to the Account of an Eligible Director immediately prior to
the distribution of the first installment by a fraction, the numerator
of which is one and the denominator of which is the total number of
installments (including the then current installment) to be paid. An
Eligible Director may at any time, and from time to time, change any
Distribution Election applicable to his or her Account, provided that
no election to change the time of any final distribution shall be
effective unless it is made in writing and received by the Corporate
Secretary of the Company at least three months prior to the time at
which the Eligible Director ceases to be a Director.
As provided in Section 7.3, in the event of the death or Disability of
an Eligible Director, the cash value of Shares and/or cash held in the
Eligible Director's Account shall be delivered to the beneficiary
designated by the Eligible Director or, in the absence of such
designation, to the Eligible Director's estate as soon as practicable
following such death or Disability.
4.5 Timing and Form of Distributions. Any distribution to be made
hereunder, whether in the form of a lump sum payment or installments,
following the termination of an Eligible Director's service as a
Director shall commence in accordance with the Distribution Election
made by the Eligible Director pursuant to Section 4.4. If an Eligible
Director fails to specify, in accordance with Section 4.4, a
commencement date for a distribution or whether such distribution shall
be made in a lump sum payment or a number of installments, such
distribution shall be made in a lump sum payment on the first business
day of the calendar quarter immediately following the date on which the
Eligible Director ceases to be a Director. In the case of any
distribution being made in annual installments, each installment after
the first installment shall be paid on the first business day of each
subsequent calendar year, or as soon as practical thereafter, until the
entire amount subject to such Distribution Election shall have been
paid.
Any distribution from an Eligible Director's Deferred Stock Account
shall be made in Shares, in cash, or in any combination thereof, as
determined by the Board of Directors in its sole discretion. If any
portion of such distribution is to be made in cash, the Company shall
pay the Eligible Director cash in an amount equal to the product of (i)
the aggregate number of Deferred Shares (including the value of
dividends and/or interest payable thereupon) credited to such Eligible
Director's Deferred Stock Account on his or her date of distribution
multiplied by (ii) the Fair Market Value on such date of distribution.
Section 5. Change in Control
5.1 Immediate Payment. Upon the occurrence of a Change in Control, each
Eligible Director's rights to and interest in amounts in his or her
Account not previously distributed in accordance with Section 4.4 and
4.5 shall become immediately payable and distributable at the earliest
practicable date.
5.2 Cash Settlement. Upon the occurrence of a Change in Control, in lieu of
delivering the Shares then held by an Eligible Director, the Company
shall pay such Eligible Director, not later than 60 days after the
Change in Control occurs, cash in an aggregate amount equal to the
product of (i) the aggregate number of Deferred Shares (including the
value of dividends and/or interest payable thereupon) credited to such
Eligible Director's Deferred Stock Account at the time of the Change in
Control multiplied by (ii) the Fair Market Value on the date of the
Change in Control.
Section 6. Unfunded Status
The Company shall be under no obligation to establish a fund or reserve in order
to pay the benefits under the Plan. A share of Deferred Stock represents a
contractual obligation of the Company to deliver a Share of Stock or pay cash to
an Eligible Director as provided herein. The Company may segregate or earmark
any Shares or any of the Company's assets for the benefits of Eligible Directors
or their beneficiaries or estates, but the Company shall not be required to do
so. An Eligible Director and his or her beneficiary or estate shall have only an
unsecured, contractual right with respect to any amounts credited to a
Director's Account hereunder, and such rights shall not be deemed superior to
the rights of any their creditor.
Section 7. General Provisions
7.1 Amendment and Termination. The Plan may be amended, suspended or
terminated, in whole or in part, by the Board, but no such action shall
retroactively impair or otherwise adversely affect the rights of any
person to receive benefits under the Plan which have accrued prior to
the date of such action. Upon the occurrence of a Change of Control (as
herein defined), the Plan may not be amended or terminated.
7.2 Assignment Status. No right to any amount payable at any time under the
Plan may be assigned, transferred, pledged, or encumbered, either
voluntarily or by operation of law, except as provided expressly
herein. This Plan shall be binding upon and inure to the benefit of the
Company and its successors and assigns, and the Eligible Director, his
or her beneficiary and estate.
7.3 Beneficiary Designation. Each Eligible Director may designate a
beneficiary or beneficiaries to receive any payments which under the
terms of the Plan may be or may become payable on or after the Eligible
Director's death or Disability. At any time, and from time to time,
such designation may be changed or canceled by the Eligible Director
without the consent of any such beneficiary. Any such designation,
change or cancellation must be on a form provided for that purpose by
the Company and shall not be effective until actually received by the
Company. If no beneficiary has been properly designated by a deceased
Eligible Director, the beneficiary shall be the Eligible Director's
estate.
7.4 No Right to Serve as a Director. This Plan shall not impose any
obligations on the Company to retain any Eligible Director as a
Director nor shall it impose any obligation on the part of any Eligible
Director to remain as a Director of the Company.
7.5 No Right to Particular Assets. Nothing contained in this Plan and no
action taken pursuant to this Plan shall create or be construed to
create a trust of any kind or any fiduciary relationship between the
Company and any Eligible Director, the executor, administrator,
personal representative or designated beneficiary of such Eligible
Director, or any other person. To the extent that any Eligible Director
or the executor, administrator, or personal representative of such
Eligible Director acquires a right to receive any payment from the
Company pursuant to this Plan, such right shall be no greater than the
right of an unsecured general creditor of the Company.
7.6 Listing of Shares and Related Matters. If at any time the Board of
Directors shall determine in its judgment that the listing,
registration or qualification of the Shares covered by this Plan upon
any national securities exchange or under any state or federal law, or
the consent or approval of any governmental or regulatory body, is
necessary or desirable as a condition of, or in connection with, the
delivery of Shares under this Plan, no Shares will be delivered unless
and until such listing, registration, qualification, consent or
approval shall have been effected or obtained.
7.7 Severability of Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed
and enforced as if such provision had not been included.
7.8 Headings and Captions. The headings and captions herein are provided
for reference and convenience only, shall not be considered part of
this Plan, and shall not be employed in the construction of this Plan.
7.9 Withholding. The Company may withhold from any distributions payable
under this Plan all Federal, state, city or other taxes as shall be
required pursuant to any applicable law or governmental regulation or
ruling.
7.10 Governing Law. The Plan and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
New York, without reference to the principles of conflict of laws
thereof.
7.11 Effective Date. The Plan shall be effective upon the date of its
adoption by the Board, which date shall be recorded in the Board's
minutes.
EXHIBIT 5.0
Opinion and Consent of Milbank, Tweed, Hadley & McCloy
November 25, 1997
Long Island Bancorp, Inc.
201 Old Country Road
Melville, NY 11747-2724
Re: Deferred Compensation Obligations
Dear Sirs:
We have acted as counsel for Long Island Bancorp, Inc., a Delaware corporation
("Bancorp"), in connection with the registration by Bancorp, pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission, of (i) $2,000,000 of Deferred
Compensation Obligations, representing unsecured obligations of Bancorp to pay
deferred compensation in the future in accordance with the terms of the Long
Island Bancorp, Inc. Non-Employee Directors Stock Compensation Plan (the
"Plan"), and (ii) an indeterminate number of shares of common stock of Bancorp
for issuance to satisfy obligations of Bancorp under the Plan.
We have examined the Plan and other such other documents and records of Bancorp
as we deemed necessary or appropriate to render this opinion. In our examination
we have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity with the originals of
all documents submitted to us as copies. As to various questions of fact
material to such opinion we have, when relevant facts were not independently
established, relied upon certifications by officers of the Company and other
appropriate persons and statements contained in the Registration Statement.
Based on the foregoing, we are of the opinion that, when the registration
becomes effective and when issued in accordance with the provisions of the Plan,
the Deferred Compensation Obligations will be valid and binding obligations of
Bancorp, enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws relating
to or affecting enforcement of creditors rights or by general equity
principles.
We express no opinion as to the applicability of, compliance with or effect of
Federal law or the law of any jurisdiction other than New York and the Delaware
General Corporation Law.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy
EXHIBIT 23 (b)
Consent of KPMG Peat Marwick
The Board of Directors
Long Island Bancorp, Inc.:
We consent to incorporation by reference in the registration statement dated
November 25,1997, on Form S-8 of Long Island Bancorp,Inc. relating to the Long
Island Bancorp, Inc. Non-Employee Directors Stock Compensation Plan of our
report dated October 22, 1996, relating to the consolidated statements of
financial condition of Long Island Bancorp, Inc. and subsidiary as of September
30, 1996 and 1995, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for each of the years in the
three-year period ended September 30, 1996, which report is incorporated by
reference in the September 30, 1996 annual report on Form 10-K of Long Island
Bancorp, Inc. Our report contains an explanatory paragraph relating to changes
in accounting principles.
Jericho, New York
November 25, 1997