-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RmnGPazCXcom/1cIHQwLck/JQaSe+LBPh6RQZaOZ75s03dmHbiGU6ABNTv6CH9EJ tx6huryvXgyFPXeg0wRanA== 0000950123-05-012474.txt : 20051024 0000950123-05-012474.hdr.sgml : 20051024 20051024171844 ACCESSION NUMBER: 0000950123-05-012474 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20051024 DATE AS OF CHANGE: 20051024 EFFECTIVENESS DATE: 20051024 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTH FORK BANCORPORATION INC CENTRAL INDEX KEY: 0000352510 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 363154608 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-129215 FILM NUMBER: 051152756 BUSINESS ADDRESS: STREET 1: 275 BROAD HOLLOW RD STREET 2: PO BOX 8914 CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 6318441004 MAIL ADDRESS: STREET 1: 275 BROAD HOLLOW RD STREET 2: PO BOX 8914 CITY: MELVILLE STATE: NY ZIP: 11747 S-8 1 y13893sv8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 2005 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- NORTH FORK BANCORPORATION, INC. (Exact name of Registrant as specified in its charter) DELAWARE 36-3154608 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 275 BROADHOLLOW ROAD MELVILLE, NEW YORK 11747 (Address of Principal Executive Offices) (Zip Code) NORTH FORK BANCORPORATION, INC. 2004 OUTSIDE DIRECTOR STOCK IN LIEU OF FEES PLAN (Full title of the Plan) JOHN ADAM KANAS Chairman, President and Chief Executive Officer North Fork Bancorporation, Inc. 275 Broadhollow Road Melville, New York 11747 (Name and address of agent for service) (631) 844-1004 (Telephone number, including area code, of agent for service) Copies of all correspondence to: THOMAS B. KINSOCK, ESQ. Thompson Coburn LLP One U.S. Bank Plaza St. Louis, Missouri 63101 ================================================================================ CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES BEING AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTERED TO BE REGISTERED (1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION PER SHARE (2) PRICE FEE - ----------------------------- ----------------------- ----------------------- ----------------------- ------------------ Common Stock 750,000 $23.67 $17,752,500 $2090 $0.01 par value per share - ----------------------------- ----------------------- ----------------------- ----------------------- ------------------
(1) Represents maximum number of shares of Common Stock available for issuance under the Registrant's 2004 Outside Directors Stock in Lieu of Fees Plan. The Plan, adopted in September, 2004, authorized the issuance of 500,000 shares; this number was adjusted, prior to the issuance of any shares, in connection with a 3 for 2 stock split on November 15, 2004. (2) Estimated solely for the purpose of calculating the registration fee. Such estimate has been calculated in accordance with Rule 457(h) under the Securities Act of 1933, and is based upon the average of the high and low prices per share of the Registrant's Common Stock as reported on the New York Stock Exchange on October 19, 2005. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information specified by Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933 and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428(b). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the Registrant with the Securities and Exchange Commission are incorporated herein by reference: (a) The Registrant's annual report on Form 10-K filed for the year ended December 31, 2004; (b) All other reports filed on Form 10-Q and Form 8-K by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above; and (c) The description of the Registrant's Common Stock which is contained in the Registration Statement filed by the Registrant under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein and filed prior to the filing hereof shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein modifies or supersedes such statement, and any statement contained herein or in any other 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 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. 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 145 of the Delaware General Corporation Law (the "DGCL") generally provides that a corporation may indemnify directors, officers, employees or agents against liabilities they may incur in such capacities provided certain standards are met, including good faith and the reasonable belief that the particular action was in, or not opposed to, the best interests of the corporation. Subsection (a) of Section 145 of the DGCL empowers a 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, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that he 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 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 2 reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. Subsection (b) of Section 145 of the DGCL empowers a 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 or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under standards similar to those set forth above, except that no indemnification may be made in respect of 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 that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper. Section 145 of the DGCL further provides that, among other things, to the extent that a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in Subsections (a) and (b) of Section 145, or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that a corporation is empowered to purchase and maintain insurance on behalf of a director or officer of the corporation 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 have the power to indemnify against such liability under Section 145. Indemnification as described above shall be granted in a specific case only upon a determination that indemnification is proper under the circumstances using the applicable standard of conduct which is made by (a) a majority of directors who were not parties to such proceeding, (b) independent legal counsel in a written opinion if there are no such disinterested directors or if such disinterested directors so direct, or (c) the shareholders. Article 8.1 of the Bylaws of the Registrant provides that the Registrant shall 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 by reason of the fact that he or she is or was a director or officer of the Registrant against expenses (including attorneys' fees), judgments, fines and settlement payments actually and reasonably incurred by him or her to the fullest extent permitted by the DGCL and any other applicable law, as may be in effect from time to time. Article 8.2 of the Bylaws of the Registrant provides that the Registrant may 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 by reason of the fact that he or she is or was an employee or agent of the Registrant or is serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her to the extent permitted by the DGCL, and any other applicable law as may be in effect from time to time. Section 102(b)(7) of the DGCL ("Section 102(b)(7)") permits the certificate of incorporation of a corporation to provide that a director shall not be personally liable to the corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (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 DGCL (dealing with unlawful dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. Article 10 of the Registrant's Certificate of Incorporation provides that, subject only to the express prohibitions on elimination or limitation of liability of directors set forth in Section 102(b)(7), as the same may be amended from time to time, directors shall not be liable for monetary damages in excess of $25,000 per occurrence resulting from a breach of their fiduciary duties. The Registrant maintains a director and officer liability insurance policy providing for the insurance on behalf of any person who is or was a director or officer of the Registrant and subsidiary companies against any liability incurred by such person in any such capacity or arising out of such person's status as such. The insurer's limit of liability under the policy is $100 million in the aggregate for all insured losses per year. The policy contains various reporting requirements and exclusions. 3 Section 18(k) of the Federal Deposit Insurance Act (the "FDI Act") provides that the FDIC may prohibit or limit, by regulation or order, payments by any insured depository institution or its holding company for the benefit of directors and officers of the insured depository institution, or others who are or were "institution-affiliated parties," as defined under the FDI Act, if such payments are on behalf of or in reimbursement of such person for any liability or legal expense sustained with regard to any administrative or civil enforcement action which results in a final order against the person. The FDIC has adopted regulations prohibiting, subject to certain exceptions, insured depository institutions, their subsidiaries and affiliated holding companies from indemnifying officers, directors or employees for any civil money penalty or judgment resulting from an administrative or civil enforcement action commenced by any federal banking agency, or for that portion of the costs sustained with regard to such an action that results in a final order or settlement that is adverse to the director, officer or employee. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS See Exhibit Index. ITEM 9. UNDERTAKINGS (a) 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 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 the 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 a 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 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. (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 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 4 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)-(g) Not Applicable. (h) 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 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 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 of 1933 and will be governed by the final adjudication of such issue. (i) Not Applicable. (j) Not Applicable. (k) Not Applicable. (l) Not Applicable. 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 Melville, State of New York, on October 24, 2005. NORTH FORK BANCORPORATION, INC. By: /s/ JOHN ADAM KANAS ------------------------------------------------- John Adam Kanas Chairman, President and Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of North Fork Bancorporation, Inc., hereby severally and individually constitute and appoint John Adam Kanas and Daniel M. Healy and each of them, the true and lawful attorneys and agents of each of us to execute in the name, place and stead of each of us (individually and in any capacity stated below) any and all amendments to this Registration Statement on Form S-8 and all instruments necessary or advisable in connection therewith and to file the same with the Securities and Exchange Commission, each of said attorneys and agents to have the power to act with or without the other and to have full power and authority to do and perform in the name and on behalf of each of the undersigned every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any of the undersigned might or could do in person, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys and agents and each of them to any and all such amendments and instruments. 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.
NAME TITLE DATE /s/ JOHN ADAM KANAS Chairman, President and Chief Executive Officer October 24, 2005 - ------------------------------------ (Principal Executive Officer) John Adam Kanas /s/ DANIEL M. HEALY Executive Vice President, October 24, 2005 - ------------------------------------ Chief Financial Officer and Director Daniel M. Healy (Principal Financial and Accounting Officer) /s/ JOSIAH T. AUSTIN Director October 24, 2005 - ------------------------------------ Josiah T. Austin /s/ JOHN BOHLSEN Director October 24, 2005 - ------------------------------------ John Bohlsen /s/ KAREN M. GARRISON Director October 24, 2005 - ------------------------------------ Karen M. Garrison /s/ KATHERINE HEAVISIDE Director October 24, 2005 - ------------------------------------ Katherine Heaviside /s/ WILLIAM M. JACKSON Director October 24, 2005 - ------------------------------------ William M. Jackson
6
/s/ THOMAS S. JOHNSON Director October 24, 2005 - ----------------------------- Thomas S. Johnson /s/ RAYMOND A. NIELSEN Director October 24, 2005 - ----------------------------- Raymond A. Nielsen /s/ ALVIN N. PURYEAR Director October 24, 2005 - ----------------------------- Alvin N. Puryear /s/ JAMES F. REEVE Director October 24, 2005 - ----------------------------- James F. Reeve /s/ GEORGE H. ROWSOM Director October 24, 2005 - ----------------------------- George H. Rowsom /s/ DR. KURT R. SCHMELLER Director October 24, 2005 - ----------------------------- Dr. Kurt R. Schmeller /s/ A. ROBERT TOWBIN Director October 24, 2005 - ----------------------------- A. Robert Towbin
7 FORM S-8 NORTH FORK BANCORPORATION, INC. EXHIBIT INDEX
Exhibit Number Description Page - ------ ----------- ---- 5.1 Opinion of Thompson Coburn LLP. 23.1 Consent of KPMG LLP, independent registered public accounting firm 23.2 Consent of Thompson Coburn LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included on signature page of the Registration Statement). 99.1 North Fork Bancorporation, Inc. 2004 Outside Directors Stock in Lieu of Fees Plan.
8 EX-5.1 2 y13893exv5w1.txt OPINION OF THOMPSON COBURN LLP EXHIBIT 5.1 October 24, 2005 314-552-6000 FAX 314-552-7000 VIA FEDERAL EXPRESS Board of Directors North Fork Bancorporation, Inc. 275 Broad Hollow Road Melville, New York 11747 Ladies and Gentlemen: We have served as counsel to North Fork Bancorporation, Inc. (the "Company") in connection with various legal matters relating to the filing of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, relating to up to 750 thousand shares of common stock of the Company, par value $0.01 per share (the "Shares"), adjusted for the stock split in November, 2004, that may be offered and sold through the North Fork Bancorporation, Inc. 2004 Outside Directors Stock in Lieu of Fees Plan (the "Plan"). We have examined such corporate records of the Company, such laws and such other information as we have deemed relevant, including the Plan, the Company's Certificate of Incorporation, as amended, and Bylaws, as amended, certain resolutions adopted by the Board of Directors and the Compensation and Stock Committee of the Board of Directors of the Company relating to the Plan and certificates received from state officials and from officers of the Company. In delivering this opinion, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as certified, photostatic or conformed copies, and the correctness of all statements submitted to us by officers of the Company. Based upon the foregoing, we are of the opinion that: 1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware. 2. All Shares issued by the Company under the Plan, if issued in accordance with the Plan, will be validly issued and outstanding and will be fully paid and nonassessable. October 24, 2005 Page 2 We consent to the use and filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Registration Statement. We also consent to your filing copies of this opinion as an exhibit to the Registration Statement with agencies of such states as you deem necessary in the course of complying with the laws of such states regarding offer and sale of Shares pursuant to the Plan. Very truly yours, /s/ Thompson Coburn LLP EX-23.1 3 y13893exv23w1.txt CONSENT OF KPMG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors North Fork Bancorporation, Inc.: We consent to incorporation by reference in the Registration Statement on Form S-8 of North Fork Bancorporation, Inc. dated October 20, 2005, our reports dated March 15, 2005, relating to the consolidated balance sheets of North Fork Bancorporation, Inc. and subsidiaries as of December 31, 2004 and 2003, and the related consolidated statements of income, cash flows, changes in stockholders' equity, and comprehensive income for each of the years in the three-year period ended December 31, 2004, management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2004, and the effectiveness of internal control over financial reporting as of December 31, 2004, which reports appear in the December 31, 2004 Annual Report on Form 10-K of North Fork Bancorporation, Inc. /s/ KPMG LLP New York, New York October 20, 2005 EX-99.1 4 y13893exv99w1.txt 2004 OUTSIDE DIRECTORS STOCK EXHIBIT 99.1 NORTH FORK BANCORPORATION, INC. 2004 OUTSIDE DIRECTORS STOCK IN LIEU OF FEES PLAN 1. Purposes of the Plan. The purpose of this 2004 Outside Directors Stock In Lieu of Fees Plan is to provide a way for the Non-Employee Directors of North Fork Bancorporation, Inc. and its subsidiaries to increase their ownership of North Fork Common Stock and align their interests with the interests of North Fork's shareholders. 2. Definitions. As used herein, the following definitions shall apply: (a) "Board" means the Board of Directors of the Company. (b) "Committee" means the Compensation and Stock Committee of the Board or any successor to such committee. (c) "Common Stock" means the common stock of the Company. (d) "Company" means North Fork Bancorporation, Inc., a Delaware corporation. (e) "Director" means a member of the Board or a member of the board of directors of any Subsidiary of the Company, or any honorary, advisory or emeritus director of the Company or any such Subsidiary. (f) "Directors Fees" means any fees payable to a Non-Employee Director for his or her service as a Director of the Company or any of its Subsidiaries, including (i) fees payable as a retainer for service on the Board of Directors or any committee of the board of directors of any such entity (including special retainer fees payable to chairpersons), (ii) fees payable for attendance at meetings of the board of directors or any committee of the board of directors of any such entity, and (iii) fees payable for service as an honorary, advisory or emeritus director of any such entity. (g) "Distribution Dates" means the 10th day of any two calendar months that are six (6) months apart (e.g., March and September) as determined from time to time by the Plan Administrator, or if either such day in any year is not a Trading Day, the first Trading Day thereafter. (h) "Employee" means any person employed by the Company or any Subsidiary of the Company. (i) "Market Value," in reference to the Common Stock, means, as of any date, the average over the preceding ten (10) Trading Days of the closing price per share of the Common Stock as quoted on the stock exchange on which the Shares are then listed. (j) "Non-Employee Director" means a Director of the Company or any Subsidiary of the Company who is not an Employee. (k) "Plan" means this 2004 Outside Directors Stock In Lieu of Fees Plan. (l) "Share" means a share of the Common Stock. (m) "Subsidiary" means a "subsidiary corporation" of the Company, whether now or hereafter existing, as defined in Section 424(f) of the Internal Revenue Code of 1986. (n) "Trading Day" means a day on which the principal U.S. securities markets are open for trading. 3. Administration. The Plan will be administered by the Committee (the "Plan Administrator"). Subject to the express provisions set forth elsewhere in this Plan, the Plan Administrator will (i) have responsibility for obtaining from Non-Employee Directors their elections forms for participation in the Plan pursuant to Section 6(a), (ii) oversee the distribution of Shares to Directors under the Plan and the maintenance of Plan books and accounts, (iii) distribute appropriate notices and materials regarding the Plan (including materials required under applicable securities and other laws) and make all appropriate filings with regulatory agencies, and (iv) interpret the Plan and otherwise have responsibility for the orderly operation of the Plan. Interpretations regarding the Plan by the Plan Administrator will be final and binding on all Directors subject to the Plan. The Plan Administrator may delegate to other parties, including officers of the Company, some or all of its duties under the Plan. 4. Stock Subject to the Plan. Subject to the provisions of Section 11 of the Plan, the maximum aggregate number of Shares which may be distributed to Non-Employee Directors under the Plan in lieu of cash fees is 500 thousand Shares. Shares distributed under the Plan may be authorized but unissued shares of Common Stock, or shares of Common Stock held in the treasury. 5. Eligibility. Only Non-Employee Directors may participate in the Plan. The Plan shall not confer upon any Non-Employee Director any right to continue as a member of the Board or a member of the board of directors of any Subsidiary of the Company or to be re-nominated to any such position, nor shall it interfere in any way with any rights which the Director, the Company or the Company's shareholders may have to terminate the Director's relationship with the Company or its Subsidiaries. 6. Elections to Receive Stock In Lieu of Cash. (a) Election Procedure. At least once each year during the life of the Plan, each Non-Employee Director will be given the opportunity to elect to receive some or all Directors Fees payable to the Non-Employee Director in the ensuing 12-month period in the form of Shares of Common Stock in 2 lieu of cash. Non-Employee Directors electing to participate or to change their pre-existing level of participation in the Plan will submit a written election to the Company in a form determined by the Plan Administrator for specifying what portions of the Directors Fees payable in the ensuing 12-month period they wish to receive in the form of Shares of Common Stock in lieu of cash. At the end of any 12-month period, Non-Employee Directors who do not wish to change their level of participation in the Plan need not return any election form to the Plan Administrator, in which event they will continue to participate in the Plan at the same level as during the preceding 12-month period. Election forms must be recorded by the Company at least one (1) month prior to the beginning of the 12-month period to which the election relates. Once an election has been made for any 12-month period and the 12-month period has begun, a Director may terminate his or her participation in the Plan for the remainder of the 12-month period, but may not modify his or her level of participation. (b) Distribution of Shares; Calculation of Number of Shares Distributable. Shares will be distributed to Directors eligible and electing to participate in the Plan on the biannual Distribution Dates, regardless of the date or dates on which cash Directors Fees are distributed to Directors. On each Distribution Date, participating Directors who have participated in the Plan in the six-month period preceding the Distribution Date (the "Distribution Period") will receive from the Company a number of Shares equal to the greater of (A) the sum of the Monthly Share Allocations for such Director during the relevant Distribution Period, determined as provided below, or (B) the Period-End Allocation for such Distribution Period, determined as provided below. A "Monthly Share Allocation" for a participating Director for any month during a Distribution Period shall equal (i) the dollar amount of the cash payment or payments of Directors Fees that the Director would have received in such month but did not receive due to his or her participation in the Plan, divided by (ii) the Market Value of the Common Stock on the date or dates in such month on which the cash payment thus foregone would otherwise have been received by the Director, calculated to the nearest one one-hundredth of a share (.01). A "Period-End Allocation" for a participating Director for any Distribution Period shall equal (i) the aggregate dollar amount of all cash payments of Directors Fees that the Director would have received in such Distribution Period but did not receive due to his or her participation in the Plan, divided by (ii) the Market Value of the Common Stock on the last date in such Distribution Period on which any cash payment thus foregone would otherwise have been received by the Director, calculated to the nearest one one-hundredth of a share (.01). In making any calculation above, if, between the date of any foregone cash payments for participating Directors and the Distribution Date, there shall have been a change in the outstanding shares of Common Stock of the Company in the 3 nature of a stock dividend, stock split, reorganization, recapitalization or other similar change, and, if appropriate, the type and issuer of shares issuable to participating Director on the Distribution Date shall be adjusted accordingly. Participants will receive cash in lieu of any fractional Share resulting from the above calculation, based on the Market Value of the Common Stock on the Distribution Date. Distribution of Shares may be made directly to participating Directors or into accounts maintained by or on behalf of such Directors under any other Company plan into which such Shares may be directly deposited, with the consent of such Directors. Distributed Shares will be registered in the name of the participating Director or, if deposited into an account under another Company plan, in the name of the administrator of such plan, or in the name of any custodian or nominee designated by either. (c) Insider Information. Non-Employee Directors will not be permitted to elect to participate in the Plan, or, if participating, to terminate their participation or change the level of their participation in the Plan, during a period when such Director would not be permitted to trade in the Company's securities under the Company's insider trading policy or when they are in possession of material non-public information concerning the Company. (d) Share Shortfalls. In the event that there shall be no remaining Shares authorized for issuance under the Plan or the issuance of additional Shares under the Plan is prohibited by applicable law, the Plan will be suspended and no further Shares will be issued under the Plan unless and until such issuance is once again lawful and may be resumed. In the event of any such suspension, if the final distribution of Shares to participants prior to such suspension may not be completed in full, each participant will receive a pro rata share of the remaining Shares available for distribution on such Distribution Date and cash in lieu of the Shares that would have been distributed to him or her on such date but were not due to the suspension, in an amount equal to the Market Value of such Shares on such date. During any period of suspension, no further elections to participate shall be made or shall be valid. 7. Term of Plan. The Plan shall become effective upon its adoption by the Board following recommendation by the Committee. It shall continue for a term of ten (10) years unless earlier terminated by the Board. 8. Share Ownership. Until the issuance to a participating Director of Shares under the Plan (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), such Director will have no right to vote or receive dividends or any other distributions or any other rights as a shareholder with respect to such Shares. 4 9. Distribution of Cash. If a Director has elected to participate in the Plan but only with respect to a portion of his or her Directors Fees, cash payments of the remaining portion of such participant's Directors Fees shall be distributed in accordance with the prevailing practices of the Company or the Subsidiary. 10. Adjustments Upon Changes in Capitalization. The number of Shares of Common Stock authorized for distribution under the Plan from time to time shall be adjusted to reflect any stock split, stock dividend, or similar change in the outstanding shares of Common Stock; provided that there shall be no such adjustment in the event of any issuance of shares of Common Stock by the Company for a consideration. 11. Amendment and Termination of the Plan. The Board may at any time amend, alter, suspend, or discontinue the Plan. 12. Conditions Upon Issuance of Shares. Shares shall not be issued under the Plan unless the issuance and delivery of such Shares shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934 as amended, the rules and regulations promulgated under such laws, state securities laws, and the requirements of any stock exchange upon which the Shares may then be listed. 5 -----END PRIVACY-ENHANCED MESSAGE-----