As filed with the Securities and Exchange Commission on ___________, 2001
Registration Statement No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
TOMPKINS TRUSTCO, INC.
(Exact name of Registrant as Specified in its Charter)
NEW YORK
(State or other Jurisdiction of Incorporation or Organization)
16-1482357
(IRS Employer Identification No.)
The Commons, P.O. Box 460
Ithaca, New York 14851
(Address of principal executive offices)
2001 STOCK OPTION PLAN
(Full Title of Plan)
Francis M. Fetsko
Senior Vice President and Chief Financial Officer
Tompkins Trustco, Inc.
The Commons, P.O. Box 460
Ithaca, New York 14851
(607) 273-3210
(Name, address, including zip code, and telephone number,
including area code, of Agent for Service)
with a copy to:
Edward C. Hooks, Esq.
Harris Beach LLP
119 East Seneca Street
Ithaca, New York 14851
(607) 273-6444
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered(1)(2) Share(3) Price(3) Fee(1)(3)
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Common
Stock 324,110 $39.91 $12,935,230 $3,091.52
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(1) This Registration Statement also covers, pursuant to Instruction E to
Form S-8, 25,890 shares of Common Stock previously registered on, and
carried forward from, a Form S-8 Registration Statement (File No.
333-60873) filed on August 7, 1998 in connection with the former 1998
Stock Option Plan (one of the predecessor plans to the 2001 Stock
Option Plan), with respect to which a filing fee of $304 was paid.
(2) This Registration Statement also includes an indeterminate number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options to purchase Common Stock, or pursuant to
the antidilution provisions of the 2001 Stock Option Plan.
(3) In accordance with Rule 457(h)(1), calculated on the basis of the
average of the high and low sales prices of the Common Stock reported
on the American Stock Exchange on December 20, 2001.
EXPLANATORY STATEMENT
Effective as of January 23, 2001, the Board of Directors of Tompkins
Trustco, Inc. (the "Company") terminated its 1998 Stock Option Plan (the "1998
Plan") and adopted, subject to stockholder approval, the 2001 Stock Option Plan
(the "2001 Plan"). The 1998 Plan remains in effect solely with respect to
unexercised options issued in accordance with the terms and conditions of the
1998 Plan. On May 15, 2001, the stockholders of the Company approved the
adoption of the 2001 Plan and the issuance of 350,000 shares of the Common Stock
of the Company thereunder.
The Company registered 240,000 shares of Common Stock on a Form S-8
Registration Statement (File No. 333-60873) for issuance under the 1998 Plan. Of
such 240,000 registered shares, a total of 25,890 shares remain available for
issuance under the 2001 Plan. Pursuant to Instruction E to Form S-8 and the
telephonic interpretation of the Securities and Exchange Commission (the
"Commission") set forth in No. 89 in the Securities Act Forms section of the
Division of Corporation Finance's Manual of Publicly Available Telephone
Interpretations (July 1997), such 25,890 remaining shares are carried forward
to, and deemed covered by, this Registration Statement.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2000 as filed with the Commission on April 2,
2001 pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Company with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
since the end of the fiscal year covered by the Company's Form
10-K referred to above; and
(c) The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form 8-A (SEC File No.
1-12709) filed with the Commission on January 30, 1997 pursuant
to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
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 or is
deemed to be 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 722 of the New York Business Corporation Law (the "BCL")
empowers a New York corporation to indemnify any person who is, or is threatened
to be, made party to any action or proceeding (other than one by or in the right
of the corporation to procure a judgment in its favor), whether civil or
criminal, by reason of the fact that such person (or such person's testator or
intestate), was an officer or director of such corporation, or served at the
request of such corporation as a director, officer, employee, agent, or in any
other capacity, of another corporation or enterprise. The indemnity may include
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred by such person as a result of
3
such action or proceeding, or any appeal therein, provided that such officer or
director acted in good faith, for a purpose that he or she reasonably believed
to be in or, in the case of service for another corporation or enterprise, not
opposed to, the best interests of the corporation and, for criminal actions or
proceedings, in addition, had no reasonable cause to believe his or her conduct
was unlawful. A New York corporation may indemnify any officer or director
against amounts paid in settlement and reasonable expenses, including attorneys'
fees, actually and necessarily incurred by him or her in connection with the
defense or settlement of an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted in respect of
(1) a threatened action, or a pending action which is settled or otherwise
disposed of, or (2) any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation, unless and only to the
extent judicially approved. Where an officer or director is successful on the
merits or otherwise in the defense of an action referred to above, the
corporation must indemnify him or her against the expenses which such officer or
director actually and reasonably incurred.
In accordance with Section 402(b) of the BCL, the Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors of the Company to the fullest extent permitted under
the BCL; provided, however, that there shall be no limitation of a director's
liability for acts or omissions committed in bad faith, or that involved
intentional misconduct or a knowing violation of law, or from which a director
personally gained a financial profit or other advantage to which he or she was
not legally entitled. The effect of this provision is to eliminate the personal
liability of directors to the Company and its shareholders for monetary damages
for actions involving a breach of their fiduciary duty of care, including any
such actions involving gross negligence.
Article VIII of the By-Laws of the Company provides for indemnification
for the officers and directors of the Company to the full extent permitted by
applicable law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration
Statement:
4.1 Form of Specimen Common Stock Certificate of the Company,
incorporated herein by reference to Exhibit 4 to the
Company's Registration Statement on Form 8-A (SEC File No.
0-27514) filed with the Commission on December 29, 1995
and amended by the Company's Form 8-A/A filed with the
Commission on January 22, 1996
5 Opinion of Harris Beach LLP
23.1 Consent of KPMG LLP
4
23.2 Consent of Harris Beach LLP (contained in the opinion
filed as Exhibit 5 to this Registration Statement)
24 Powers of Attorney (included in Part II of this
Registration Statement under the caption "Signatures")
99 2001 Stock Option Plan
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERINGS.
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 this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or 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 and 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 the volume and price represent no more than 20 percent 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 this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Exchange Act
that are incorporated by reference in this 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 unsold at the termination of
the offering.
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(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
The undersigned registrant hereby undertakes 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 Section 15(d) of the
Exchange Act that is incorporated by reference in this 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) FILING OF REGISTRATION STATEMENT ON FORM S-8.
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 provisions of the registrant's charter, or otherwise,
the registrant has been advised that in the opinion of the 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Ithaca, State of New York, on December
21, 2001.
TOMPKINS TRUSTCO, INC.
By: /s/ JAMES J. BYRNES
---------------------------------
James J. Byrnes
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints JAMES J. BYRNES, JAMES W. FULMER and FRANCIS M. FETSKO, and each of
them singly, such person's true and lawful attorney-in-fact and agent, with full
powers of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8
to be filed by Tompkins Trustco, Inc., and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to perform any other act on behalf of the undersigned required to
be done in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
By: /s/ JAMES J. BYRNES Chairman of the Board and December 21, 2001
---------------------------- Chief Executive Officer
James J. Byrnes
By: /s/ JAMES W. FULMER President and Director December 21, 2001
----------------------------
James W. Fulmer
By: /s/ FRANCIS M. FETSKO Senior Vice President and December 21, 2001
---------------------------- Chief Financial Officer
Francis M. Fetsko
By: /s/ JOHN E. ALEXANDER Director December 21, 2001
----------------------------
John E. Alexander
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By: /s/ REEDER D. GATES Director December 21, 2001
----------------------------
Reeder D. Gates
By: /s/ WILLIAM W. GRISWOLD Director December 21, 2001
----------------------------
William W. Griswold
By: /s/ JAMES R. HARDIE Director December 21, 2001
----------------------------
James R. Hardie
By: /s/ EDWARD C. HOOKS Director December 21, 2001
----------------------------
Edward C. Hooks
By: /s/ BONNIE H. HOWELL Director December 21, 2001
----------------------------
Bonnie H. Howell
By: /s/ HUNTER R. RAWLINGS, III Director December 21, 2001
----------------------------
Hunter R. Rawlings, III
By: /s/ THOMAS R. SALM Director December 21, 2001
----------------------------
Thomas R. Salm
By: /s/ MICHAEL H. SPAIN Director December 21, 2001
----------------------------
Michael H. Spain
By: /s/ WILLIAM D. SPAIN, JR. Director December 21, 2001
----------------------------
William D. Spain, Jr.
By: /s/ CRAIG YUNKER Director December 21, 2001
----------------------------
Craig Yunker
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EXHIBIT INDEX
Exhibit
Number
------
Title of Exhibit
----------------
4.1 Form of Specimen Common Stock Certificate of the Company,
incorporated herein by reference to Exhibit 4 to the Company's
Registration Statement on Form 8-A (SEC File No. 0-27514) filed
with the Commission on December 29, 1995, and amended by the
Company's Form 8-A/A filed with the Commission on January 22,
1986
5 Opinion of Harris Beach LLP
23.1 Consent of KPMG LLP
23.2 Consent of Harris Beach LLP (contained in the opinion filed as
Exhibit 5 to this Registration Statement)
24 Powers of Attorney (included in Part II of this Registration
Statement under the caption "Signatures")
99 2001 Stock Option Plan
9