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As filed with the Securities and Exchange Commission on May 18, 2018
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Registration No. __________
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_____________________________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
INDEPENDENT BANK CORP.
(Exact name of registrant as specified in its charter)
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Massachusetts
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04-2870273
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Office Address: 2036 Washington Street, Hanover, Massachusetts 02339
Mailing Address: 288 Union Street, Rockland, Massachusetts 02370
(Address of principal executive office with zip code)
INDEPENDENT BANK CORP. 2018 NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full title of the Plan)
Edward H. Seksay, Esq.
General Counsel
Independent Bank Corp.
288 Union Street, Rockland, Massachusetts 02370
(781) 982-6158
(Name, address, including zip code, and telephone number, including area code, of agent for service)
_______
Copy to:
Michael T. Rave, Esq.
Day Pitney LLP
One Jefferson Road
Parsippany, New Jersey 07054
(973) 966-6300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
o
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
o
CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount to be
Registered (1)(2)
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Proposed Maximum
Offering Price
Per Share (3)
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Proposed Maximum
Aggregate Offering
Price (3)
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Amount of
Registration Fee
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Common Stock,
par value $0.01 per share
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300,000 shares
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$74.65
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$22,395,000
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$2,788.18
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__________________________
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(1)
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Plus such additional number of shares as may be required pursuant to the plan set forth above in the event of a stock dividend, split-up of shares, recapitalization or other similar change in the Common Stock.
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(2)
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The amount to be registered under the Independent Bank Corp. 2018 Non-Employee Director Stock Plan (the “2018 Plan”) represents: (i) 125,145 shares of Common Stock initially reserved for future issuance under the 2018 Stock Plan and (ii) 174,855 shares of Common Stock that remained available for issuance under the Independent Bank Corp. 2010 Non-Employee Director Stock Plan (the “2010 Plan”) immediately prior to stockholder approval of the 2018 Plan on May 17, 2018 (the “Effective Date”). The 2018 Plan replaced the 2010 Plan as of the Effective Date and no further awards may be granted under the 2010 Stock Plan.
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(3)
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Estimated solely for the purpose of calculating the registration fee. Such estimate has been computed in accordance with Rule 457(c) and Rule 457(h) of the Securities Act based on the average of the high and low prices of the Common Stock as reported on the Nasdaq Stock Market on May 11, 2018.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Independent Bank Corp. 2018 Non-Employee Director Stock Plan (the “Plan”) in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”). These document(s) and the documents incorporated by reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus (the “Prospectus”) that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3.
Documents Incorporated By Reference
The following documents filed by Independent Bank Corp. (the “Company” or “Independent”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this Registration Statement to the extent that the information contained therein is deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
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1.
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2017;
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2.
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All other reports filed by the Company pursuant to Sections 13(a) or 15(d) of the Exchange Act, since the end of the fiscal year covered by the Company’s latest Annual Report on Form 10-K; and
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3.
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The description of the Company’s Common Stock contained in the Registration Statement on Form 8-A filed with the Commission on January 21, 1986, and the description of the Company’s Renewal Rights Agreement dated as of September 14, 2000, as set forth on its Form 8-A dated September 23, 2000, including all amendments and reports amending such descriptions.
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In addition, all documents hereafter filed by the Company or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold (other than information contained therein that is not deemed “filed” for purposes of Section 18 of the Exchange Act), are hereby incorporated herein by reference and are a part hereof from the date of filing of such documents. Any statement contained herein or 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
Certain legal matters relating to the issuance of the shares of the Company’s Common Stock offered hereby have been passed upon by Day Pitney LLP, counsel to the Company. Partners and other attorneys involved in the preparation of the Registration Statement in the law firm of Day Pitney LLP do not beneficially own any shares of the Company as of May 18, 2018.
ITEM 6.
Indemnification of Directors and Officers
The Company is a Massachusetts corporation. Massachusetts General Laws Chapter 156D, Part 8, Subdivision E, provides that a corporation may, subject to certain limitations, indemnify its directors, officers, employees and other agents, and individuals serving with respect to any employee benefit plan, and must, in certain cases, indemnify a director or officer for his reasonable costs if he is wholly successful in his defense in a proceeding to which he was a party because he was a director or officer of the corporation. In certain circumstances, a court may order a corporation to indemnify its officers or directors or advance their expenses. Chapter 156D, Section 8.58 allows a corporation to limit or expand its obligation to indemnify its directors, officers,
employees and agents in the corporation’s articles of organization, a bylaw adopted by the stockholders, or a contract adopted by its board of directors or stockholders.
Both Chapter 156D, Section 8.57 and Independent’s articles of organization provide that the corporation may purchase and maintain insurance against liability incurred by an officer or director in his capacity as officer or director or while serving at Independent’s request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity, or arising out of his status as such. Independent currently maintains directors’ and officers’ liability insurance, which insures the officers and directors of Independent from any claim arising out of an alleged wrongful act by such person in their respective capacities as officers and directors of Independent.
Under Independent’s articles of organization and its bylaws, Independent may not indemnify a director or officer unless ordered to do so by a court if his or her conduct: (a) was a breach of the director’s or officer’s duty of loyalty to Independent or its stockholders, (b) was not in good faith or involved intentional misconduct or a knowing violation of law, (c) resulted in an improper distribution under Section 6.40 of Chapter 156D of the Massachusetts General Laws, (d) was conduct from which the director or officer derived an improper personal benefit, or (e) was at least not opposed to the best interests of Independent, if the conduct was with respect to an employee benefit plan, for a purpose he or she reasonably believed to be in the interests of the participants in, and the beneficiaries of, the plan.
The determination of whether the relevant standard of conduct have been met shall be made: (a) if there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors or by a majority of the members of a committee of two or more disinterested directors appointed by vote; (b) by special legal counsel selected by a majority vote of all the disinterested directors or by a majority of the members of a committee of two or more disinterested directors appointed by vote; (c) if there are fewer than two disinterested directors, selected by the board of directors, in which selection directors who do not qualify as disinterested directors may participate; or (d) by the stockholders (but shares owned by or voted under the control of a disinterested director may not be voted on the determination).
Independent is not obligated under its articles of organization to indemnify or advance expenses to a director or officer of a predecessor of Independent, pertaining to conduct with respect to the predecessor, unless otherwise specifically provided.
Independent’s articles of organization provide that no amendment or repeal of the indemnification provision of its bylaws or of the relevant provisions of Chapter 156D shall affect or diminish the rights of any indemnified person to indemnification with respect to any action or proceeding arising out of or relating to any actions or omissions occurring prior to the final adoption of the amendment or repeal.
The articles of organization also provide that if the Massachusetts Business Corporation Act is subsequently amended to increase the scope of permitted indemnification, indemnification under the articles shall be provided to the full extent permitted or required by the amendment.
ITEM 7.
Exemption from Registration Claimed
Not applicable.
ITEM 8.
Exhibits
ITEM 9.
Undertakings
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 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 Securities and Exchange 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;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
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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 reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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)
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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 the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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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 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 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 Town of Hanover, Commonwealth of Massachusetts, on the 17th day of May, 2018.
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INDEPENDENT BANK CORP.
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By:
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/s/ Edward H. Seksay
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Edward H. Seksay
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General Counsel
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Edward H. Seksay and Patricia M. Natale his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, to sign on his or her behalf, individually and in any and all capacities, including the capacities stated below, any and all amendments (including post-effective amendments) to this Registration Statement and any registration statements filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933, as amended, relating thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, 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 indicated on May 17, 2018:
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Signature
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Title
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Date
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/s/ Christopher Oddleifson
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Director, Chief Executive Officer and President
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Date: May 17, 2018
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Christopher Oddleifson
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(Principal Executive Officer)
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/s/ Donna L. Abelli
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Director and Chairman of the Board
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Date: May 17, 2018
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Donna L. Abelli
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/s/ Robert D. Cozzone
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Chief Financial Officer
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Date: May 17, 2018
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Robert D. Cozzone
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(Principal Financial Officer)
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/s/ Mark Ruggiero
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Controller
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Date: May 17, 2018
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Mark Ruggiero
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(Principal Accounting Officer)
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/s/ Michael P. Hogan
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Director
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Date: May 17, 2018
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Michael P. Hogan
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/s/ Kevin J. Jones
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Director
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Date: May 17, 2018
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Kevin J. Jones
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/s/ Mary L. Lentz
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Director
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Date: May 17, 2018
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Mary L. Lentz
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/s/ Eileen C. Miskell
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Director
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Date: May 17, 2018
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Eileen C. Miskell
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/s/ John J. Morrissey
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Director
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Date: May 17, 2018
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John J. Morrissey
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/s/ Gerard F. Nadeau
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Director
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Date: May 17, 2018
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Gerard F. Nadeau
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Signature
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Title
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Date
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/s/ Daniel F. O’ Brien
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Director
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Date: May 17, 2018
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Daniel F. O’ Brien
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/s/ Carl Ribeiro
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Director
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Date: May 17, 2018
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Carl Ribeiro
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/s/ John H. Spurr, Jr.
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Director
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Date: May 17, 2018
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John H. Spurr, Jr.
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/s/ Frederick Taw
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Director
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Date: May 17, 2018
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Frederick Taw
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/s/ Brian S. Tedeschi
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Director
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Date: May 17, 2018
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Brian S. Tedeschi
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/s/ Thomas R. Venables
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Director
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Date: May 17, 2018
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Thomas R. Venables
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Exhibit 4.1
Approved by Board of Directors on March 15, 2018
Approved by shareholders on May 17, 2018
INDEPENDENT BANK CORP. 2018 NON-EMPLOYEE DIRECTOR STOCK PLAN
This 2018 Non-Employee Director Stock Plan (the “
Plan
”) has been approved to grant stock options and to make restricted stock awards to directors of Independent Bank Corp. (the “
Company
”), Rockland Trust Company, a wholly-owned subsidiary of the Company (“
Rockland Trust
”), and any other direct or indirect wholly-owned subsidiary of the Company who are not also employees of the Company, Rockland Trust, or any other direct or indirect wholly-owned subsidiary of the Company (collectively, the “
Non-Employee Directors
”) in the manner and at the times described below. The purposes of the Plan are: to promote the long-term success of the Company and its subsidiaries by creating a long-term mutuality of interests between the Non-Employee Directors and the Company’s shareholders through equity award grants; to provide an additional inducement for the Non-Employee Directors to remain with the Company, any future wholly-owned subsidiaries of the Company, and/or Rockland Trust; and, to provide a means through which the Company and Rockland Trust may attract qualified persons to serve as Non-Employee Directors.
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2.
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Effect of Plan on Rights of the Company and Shareholders.
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Nothing in this Plan, or in any equity award made under this Plan, shall confer any right to any person to continue as a Non-Employee Director or interfere in any way with the rights of the shareholders or the Board of Directors (the “Board”) to appoint, elect, and/or remove directors.
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3.
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Types of Awards and Administration.
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(a)
Types of Awards.
Stock options and restricted stock awards will be granted to Non-Employee Directors under this Plan in the amounts and at the times specified below. All stock options granted pursuant to this Plan will be non-statutory stock options that are not intended to qualify under the requirements of Sections 422 or 423 of the Internal Revenue Code of 1986 (the “
Code
”).
(b)
Administration.
(i)
This Plan describes the Non-Employee Directors to whom equity awards are granted, the timing of grants, the number of shares subject to any award, the exercise price of any stock option, the periods during which any stock option may be exercised and restricted stock awards shall vest, and the term of any stock option.
(ii)
The Board shall administer this Plan, subject to any limits expressly imposed by this Plan on the Board’s discretion. The Board’s construction and interpretation of the terms and provisions of this Plan shall be final and conclusive. The Board shall have authority, subject to the express provisions of this Plan, to construe the stock option agreements (each, an “
Option Agreement
”) and restricted stock agreements (each a “
Restricted Stock Agreement
”) issued pursuant to this Plan, to prescribe, amend, and rescind rules and regulations relating to this Plan, to determine the terms and provisions of Option Agreements and Restricted Stock Agreements, and to make all other determinations which are, in the judgment of the Board, necessary or desirable for the administration of this Plan. The Board may correct any defect, supply any omission, or reconcile any inconsistency in this Plan, in any Option Agreement, or
in any Restricted Stock Agreement in the manner and to the extent it shall deem expedient to carry this Plan into effect and it shall be the sole and final judge of such expediency. No director or person acting pursuant to authority delegated by the Board shall be liable for any action or determination made in good faith under this Plan.
The Board may, to the full extent permitted by or consistent with applicable law and the Plan, delegate any or all of its powers under this Plan to a compensation committee (the “
Compensation Committee
”) appointed by the Board, subject to any votes as may be adopted by the Board that are consistent with this Plan. If the Compensation Committee is appointed, the Compensation Committee may assume all responsibilities of the Board under the Plan. The Compensation Committee, if appointed, shall consist of two or more directors, each of whom is a “non-employee director” within the meaning of Rule 16b-3 (as defined below). The Board, however, may abolish the Compensation Committee at any time and re-vest in the Board the administration of this Plan.
(c)
Applicability of Rule 16b-3.
Those provisions of this Plan which make express reference to Rule 16b-3 promulgated under the Securities Exchange Act of 1934 (the “
Exchange Act
”), or any successor rule (“
Rule 16b-3
”), or which are required in order for certain option transactions to qualify for exemption under Rule 16b-3, shall apply only to such persons as are required to file reports under Section 16(a) of the Exchange Act.
Equity awards may be granted to any Non-Employee Director. Persons who are Non-Employee Directors of both the Company and of Rockland Trust, or both the Company and any direct or indirect wholly-owned subsidiary of the Company, shall be entitled to awards under this Plan as if they were Non-Employee Directors of the Company only. Stock options and restricted stock awards may be granted separately or in any combination to any individual eligible under this Plan.
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5.
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Stock Subject To Plan.
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The aggregate number of shares which may be issued and as to which grants of stock options and/or restricted stock awards may be made under this Plan is three hundred thousand (300,000) shares of common stock, par value $0.01 per share, of the Company (the “
Common Stock
”), which shall include any shares of Common Stock that remain available for issuance pursuant to the Independent Bank Corp. 2010 Non-Employee Director Stock Plan (the “
2010 Plan
”) as of the date of shareholder approval of this Plan, subject to adjustment and substitution as provided below. If any stock option granted under this Plan or the 2010 Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares shall again be available for purposes of this Plan. The shares which may be issued under this Plan may be authorized but unissued shares, reacquired shares, treasury shares, or any combination of those types of shares.
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6.
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Grants of Equity Awards.
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(a)
2018 Restricted Stock Award to Non-Employee Directors
On the later of (i) the third business day following the day of the Company’s 2018 Annual Shareholders Meeting if this Plan is approved by shareholders or (ii) the effectiveness of a registration statement registering the securities issued by this Plan under the Securities Act of 1933, as amended, (the “
Act
”), each Non-Employee Director shall each automatically and without further action be granted a restricted stock award for five hundred (500) shares of Common Stock that will vest immediately.
(b)
Annual Grants of Restricted Stock Awards.
On the third business day following the day of each annual shareholders meeting after 2018, each then current Non-Employee Director shall be granted either (A) a restricted stock award in an amount of shares of Common Stock not to exceed one thousand five hundred (1,500) shares which shall vest immediately upon grant, (B) a stock option to purchase not more than three thousand (3,000) shares of Common Stock which shall be immediately exercisable, or (C) a combination of restricted stock awards and stock options subject to the foregoing limits and an overall limit of 4,500 shares of Common Stock. Any new Non-Employee Director who joins the Board during the period between the annual shareholders meeting and December 31 of that year shall be entitled to receive, on the third business day following appointment to the Board, the same award as if he or she had been a member of the Board on the date of the annual shareholders meeting. Each year the Compensation Committee will recommend to the Board the type(s) and amounts of equity awards to be granted to Non-Employee Directors within the parameters established by this Plan based upon a review of the compensation practices of comparable financial institutions and any other relevant considerations. The Board will evaluate and vote upon that recommendation.
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7.
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Terms and Conditions of Stock Options.
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(a)
Option Price.
The purchase price at which each stock option may be exercised (the “
Option Price
”) shall be one hundred percent (100%) of the fair market value per share of the Common Stock covered by the stock option on the date of grant. “
Fair Market Value
” of the Common Stock shall be determined by the Compensation Committee in its sole discretion; provided, however, that Fair Market Value shall be equal to: (i) if the Common Stock is listed on the National Association of Securities Dealers Automated Quotation System or any successor system then in use (“
NASDAQ
”), the mean of the highest and lowest sales prices per share of the Common Stock for the grant date on the NASDAQ, as quoted in
The Wall Street Journal
(or in such other reliable publication as the Board, in its discretion, may determine to rely upon), or (ii) if the Common Stock is not listed on NASDAQ, the mean of the highest and lowest sales prices per share of Common Stock for the grant date on (or on any composite index including) the principal United States securities exchange registered under the Exchange Act on which the Common Stock is listed, as quoted in
The Wall Street Journal
(or in such other reliable publication as the Board, in its discretion, may determine to rely upon). If the Fair Market Value of the Common Stock cannot be determined on the basis set forth above, the Board shall in good faith determine the Fair Market Value of the Common Stock on the grant date. Fair Market Value shall be determined without regard to any restriction other than a restriction which, by its terms, will never lapse.
(b)
Payment of Option Price.
The Option Price for each stock option shall be paid in full upon exercise and shall be payable in cash in United States dollars; provided, however, that in lieu of cash the person exercising the stock option may pay the Option Price in whole or in part by delivering shares of Common Stock already owned by such person having a fair market value, determined in the manner set forth above for the day immediately preceding the date on which the Option Price is delivered, equal to the Option Price for the shares being purchased; except that any portion of the Option Price representing a fraction of a share shall in any event be paid in cash. Delivery of shares may also be accomplished through the effective transfer to the Company of shares held by a broker or other agent. Notwithstanding the foregoing, the exercise of the stock option shall not be deemed to occur and no shares of Common Stock will be issued until the
Company has received payment, in full, of the Option Price. The date of exercise of a stock option shall be determined under procedures established by the Board, and as of the date of exercise the person exercising the stock option shall be considered for all purposes to be the owner of the shares with respect to which the stock option has been exercised. Payment of the Option Price with shares shall not increase the number of shares of the Common Stock which may be issued under this Plan.
(c)
Expiration and Vesting.
Each stock option shall expire on the date specified in the applicable Option Agreement. Subject to the preceding sentence and subject to the provisions of this Plan that provide for earlier termination of a stock option under certain circumstances, each stock option shall be immediately exercisable and remain exercisable for not later than ten years from the date on which the stock option was granted. Stock options, to the extent exercisable at any time, may be exercised in whole or in part.
(d)
Nontransferability of Options.
Except as expressly provided below, stock options shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of by the Non-Employee Director to whom they are granted (the “
Grantee
”), either voluntarily or by operation of law and, during the life of the Grantee, shall be exercisable only by the Grantee or other transferee permitted by this Section 7. Stock options, however, may be transferred (i) pursuant to a qualified domestic relations order (as defined in Rule 16b-3), (ii) by will or the laws of intestacy, or (iii) to any member of the Grantee’s Family. The Grantee’s “
Family
” shall, for purposes of this Plan, mean a Grantee’s spouse, the Grantee’s lineal descendants by birth or adoption, and trusts for the exclusive benefit of the Grantee and/or the foregoing individuals.
(e)
Effect of Termination of Non-Employee Director Status.
If a Grantee ceases to be a Non-Employee Director, any outstanding stock options held by the Grantee shall be exercisable according to the following provisions:
(i)
General.
If a Grantee ceases to be a Non-Employee Director for any reason other than removal from the Board for cause, any outstanding stock option shall be exercisable by the Grantee at any time prior to the expiration date of the stock option or within three years after the date the Grantee ceases to be a Non-Employee Director, whichever is the shorter period. Following the death or permanent and total disability (as defined in Section 22(e)(3) of the Code or any successor) of a Grantee during service as a Non-Employee Director any outstanding stock option held by the Grantee at the time of death or permanent and total disability (whether or not exercisable by the Grantee immediately prior to death or permanent and total disability) shall be exercisable by the person entitled to do so under the Grantee’s will or, if the Grantee shall fail to make testamentary disposition of the stock option, shall die intestate or shall become permanently and totally disabled, by the Grantee’s legal representative at any time prior to the expiration date of the stock option or within three years after the Grantee’s death or permanent and total disability, whichever is the shorter period.
(ii)
For Cause
. If during his or her term of office as a Non-Employee Director a Grantee is removed from the Board for cause, any outstanding stock option held by the Grantee shall immediately terminate and be forfeited.
(f)
Option Agreements.
All stock options shall be confirmed by an Option Agreement which shall be executed by the Grantee and, on behalf of the Company, by the Chief Executive Officer (if other than the President),
the President, or any officer of the Company or Rockland Trust that the Chief Executive Officer authorizes to sign the Option Agreement. Each Option Agreement shall contain such terms, provisions, and conditions consistent with this Plan as may be determined by the Board, in its sole discretion.
(g)
Registration and Listing.
The obligation of the Company to issue shares of the Common Stock under this Plan upon the exercise of stock options shall be subject to (i) the effectiveness of a registration statement under the Act with respect to such shares, if deemed necessary or appropriate by counsel for the Company, (ii) the condition that the shares shall have been listed (or authorized for listing upon official notice of issuance) upon each stock exchange, if any, on which the Common Stock may then be listed and (iii) all other applicable laws which may then be in effect.
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8.
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Terms and Conditions of Restricted Stock Awards.
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(a)
Restricted Stock Agreements.
Any restricted stock award shall be confirmed by a Restricted Stock Agreement which shall be executed by the Non-Employee Director to whom it is granted and, on behalf of the Company, by the Chief Executive Officer (if other than the President), the President, or any officer of the Company or Rockland Trust that the Chief Executive Officer authorizes to sign the Restricted Stock Agreement. Each Restricted Stock Agreement shall contain such terms, provisions and conditions consistent with this Plan as may be determined by the Board, in its sole discretion.
(b)
Registration and Listing.
The obligation of the Company to issue shares of the Common Stock under this Plan for restricted stock awards shall be subject to (i) the effectiveness of a registration statement under the Act with respect to such shares, if deemed necessary or appropriate by counsel for the Company, (ii) the condition that the shares shall have been listed (or authorized for listing upon official notice of issuance) upon each stock exchange, if any, on which the Common Stock may then be listed and (iii) all other applicable laws which may then be in effect.
(a)
Investment Representations.
The Company may require any person to whom a stock option or restricted stock award is granted to give written assurances in substance and form satisfactory to the Company to the effect that the person is acquiring the Common Stock for his or her own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws, or with covenants or representations made by the Company in connection with any public offering of its Common Stock.
(b)
Compliance with Securities Laws.
Each stock option or restricted stock award shall be subject to the requirement that if, at any time, counsel to the Company shall determine that the listing, registration, or qualification of the shares subject to such stock option or restricted stock award upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental or regulatory body, or that the disclosure of non-public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of shares thereunder, the option may not be exercised, in whole or in part, unless the listing, registration, qualification, consent or approval, or satisfaction of condition shall have been effected or obtained on conditions acceptable to the Board. Nothing in this Plan shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification, or to satisfy any such condition.
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10.
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Rights as a Shareholder.
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The holder of a stock option shall have no rights as a shareholder with respect to any shares covered by the stock option (including, without limitation, any rights to receive dividends or non-cash distributions with respect to such shares) until exercise of the stock option and issuance of the shares of Common Stock underlying the stock option. No adjustment shall be made for dividends or other rights for which the record date is prior to the date of exercise.
The holder of a restricted stock award shall have any and all rights of a shareholder with respect to the shares covered by a restricted stock award. Such rights include, without limitation, any rights to receive dividends or non-cash distribution with respect to such shares and the right to vote shares at any meeting of the Company’s shareholders.
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11.
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Adjustment Provisions for Recapitalizations and Related Transactions.
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(a)
General.
If, through or as a result of any merger, consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction, (i) the outstanding shares of Common Stock are increased, decreased, or exchanged for a different number or kind of shares or other securities of the Company, or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment shall be made in (x) the maximum number and kind of shares reserved for issuance under this Plan, (y) the number and kind of shares or other securities subject to any then outstanding stock options under this Plan, and (z) the price for each share subject to any then outstanding stock options under this Plan, without changing the aggregate purchase price as to which the stock options remain exercisable. Notwithstanding the foregoing, any other provision in this Plan or in an Option Agreement, in the event of a transaction listed above or a Change in Control, the Compensation Committee, with the approval of the Board, shall have the right and authority to cancel and terminate all outstanding stock options by paying each stock option holder in cash the difference between the exercise price, if any, and the Fair Market Value of the Shares underlying the stock option on the date of the consummation of the transaction or Change in Control.
A “
Change of Control
” shall be deemed to have occurred if (i) any “person” (as such term is defined in Section 13(d) of the Exchange Act) is or becomes the beneficial owner, directly or indirectly, of either (x) a majority of the outstanding common stock of the Company or Rockland Trust, or (y) securities of either the Company or Rockland Trust representing a majority of the combined voting power of the then outstanding voting securities of either the Company or Rockland Trust, respectively; or (ii) the Company or Rockland Trust consolidates or merges with any other person or sells all or substantially all of its assets to a person not at that time owning a majority of the outstanding voting stock
of the Company; or (iii) individuals who currently constitute the Board cease for any reason to constitute a majority of the Board, unless the election of each new director was nominated or approved by the shareholders of the Company at their regularly scheduled annual meeting or was approved by at least two thirds of the directors of the Board currently in office.
(b)
Board Authority to Make Adjustments.
Any adjustments or substitutions under this Section 11 shall be made by the Board, whose determination as to such adjustments or substitutions, if any, shall be final, binding and conclusive. No fractional shares will be issued under this Plan on account of any such adjustments or substitutions.
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12.
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Amendment of the Plan.
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The Board reserves the right to modify, amend or terminate the Plan from time to time, in any respect, in order to meet changes in legal requirements or for any other reason. The Company must obtain shareholder approval for each amendment of the Plan for which shareholder approval is required by the Code, any applicable stock exchange listing requirements, or any other applicable laws or regulations.
The termination or any modification or amendment of this Plan shall not, without the consent of the holder of a stock option or any restricted stock award, affect his or her rights. The Board, however, may with the consent of the person affected amend outstanding Option Agreements or Restricted Stock Agreements in a manner consistent with this Plan. The Board, however, shall have the right to amend or modify the terms and provisions of this Plan and of any outstanding Option Agreement or Restricted Stock Agreement to the extent necessary to ensure the qualification of this Plan under Rule 16b-3.
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13.
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Effective Date and Duration of the Plan.
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(a)
Effective Date.
This Plan shall immediately take effect once approved by the Company’s shareholders. If shareholder approval is obtained at the 2018 Annual Shareholders Meeting, this Plan shall immediately be in effect on that date and the equity awards granted on the later of (i) the third business day after the meeting or (ii) the effectiveness of a registration statement under the Act with respect to the shares subject to this Plan.
(b)
Termination.
This Plan shall terminate upon the close of business on the day after restricted stock or stock option awards are made following the 2028 Annual Shareholders Meeting. Any stock options outstanding or unvested restricted stock awards that exist as of the termination date shall continue to have force and effect in accordance with the provisions of the any Option Agreement or Restricted Stock Agreement evidencing them.
