As filed with the Securities and Exchange Commission on August 7, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
TOMPKINS COUNTY TRUSTCO, INC.
(Exact name of Company as Specified in its Charter)
NEW YORK
(State or other Jurisdiction of Incorporation or Organization)
161482357-8
(IRS Employer Identification No.)
The Commons, P.O. Box 460
Ithaca, New York 14851
(Address of principal executive offices)
1998 STOCK OPTION PLAN
(Full Title of Plan)
Richard D. Farr
Senior Vice President and
Chief Financial Officer
Tompkins County 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 & Wilcox, LLP
119 East Seneca Street
Ithaca, New York 14850
(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) Share(2) Price(2) Fee(2)
- --------------------------------------------------------------------------------
Common
Stock 240,000 $39.75 $9,540,000 $2,815
================================================================================
(1) The 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 Plan.
(2) In accordance with Rule 457 (c), calculated on the basis of the average
of the high and low sales prices of the Common Stock reported on the
American Stock Exchange, Inc. on August 3, 1998.
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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 Tompkins County Trustco, Inc. (the
"Company") for the fiscal year ended December 31, 1997 as filed with
the Commission on March 27, 1998 pursuant to Sections 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 (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 Section 13(a),
Section 13(c), Section 14 and Section 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 incorporated herein by
reference from the date of filing of such reports and 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
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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 persons who are, or are threatened to be,
parties 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 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, 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 officers and directors 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
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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 of 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 "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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 of the
Company's Registration Statement on Form 8-A (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
4.2 1998 Stock Option Plan
5. Opinion of Harris Beach & Wilcox, LLP
23.1. Consent of KPMG Peat Marwick LLP
23.2. Consent of Harris Beach & Wilcox, 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")
4
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 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 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
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.
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(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.
(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) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 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 FORMS S-8.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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
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 offered, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ithaca, State of New York on July 31, 1998.
By: /s/ JAMES J. BYRNES
-----------------------------------
James J. Byrnes
Chairman of the Board, President
and Chief Executive Officer
Each person whose signature appears below constitutes and appoints James J.
Byrnes, Donald S. Stewart and Richard D. Farr, and each of them singly, his true
and lawful attorney-in- fact and agent with full power of substitution and
resubstitution, for him and in his 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 County
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 be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on the date indicated.
Signature Capacity Date
- --------- -------- ----
/s/ JAMES J. BYRNES Chairman of the Board, July 31, 1998
- ----------------------- President and Chief Executive
James J. Byrnes Officer
/s/ RICHARD D. FARR Senior Vice President and July 31, 1998
- ----------------------- Chief Financial Officer
Richard D. Farr
- ----------------------- Director July __, 1998
John E. Alexander
/s/ REEDER D. GATES Director July 31, 1998
- -----------------------
Reeder D. Gates
- ----------------------- Director July __, 1998
William W. Griswold
/s/ CARL E. HAYNES Director July 31, 1998
- -----------------------
Carl E. Haynes
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Signature Capacity Date
- --------- -------- ----
- ----------------------- Director July __, 1998
Edward C. Hooks
/s/ ROBERT T. HORN, JR. Director July 31, 1998
- -----------------------
Robert T. Horn, Jr.
/s/ BONNIE H. HOWELL Director July 31, 1998
- -----------------------
Bonnie H. Howell
/s/ LUCINDA A. NOBLE Director July 31, 1998
- -----------------------
Lucinda A. Noble
- ----------------------- Director July __, 1998
Hunter R. Rawlings, III
/s/ FRANK H.T. RHODES Director July 31, 1998
- -----------------------
Frank H.T. Rhodes
/s/ THOMAS R. SALM Director July 31, 1998
- -----------------------
Thomas R. Salm
/s/ MICHAEL D. SHAY Director July 31, 1998
- -----------------------
Michael D. Shay
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EXHIBIT INDEX
Exhibit
Number Title Of Exhibit Page
- ------- ---------------- ----
4.1 Form of Specimen Common Stock Certificate of the
Company, incorporated herein by reference to
Exhibit 4 of the Company's Registration Statement
on Form 8-A (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
4.2 1998 Stock Option Plan
5. Opinion of Harris Beach & Wilcox, LLP
23.1. Consent of KPMG Peat Marwick LLP
23.2. Consent of Harris Beach & Wilcox, 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")
9