Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
TRUSTCO BANK CORP NY
(Exact Name of Registrant as Specified in Its Charter)
NEW YORK 14-1630287
(State of Incorporation) (I.R.S. Employer
Identification Number)
5 SARNOWSKI DRIVE, GLENVILLE, NEW YORK 12302 (518) 377-3311
(Address, Including ZIP Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
ROBERT M. LEONARD WITH COPIES TO:
SECRETARY LEONARD J. ESSIG, ESQ.
TRUSTCO BANK CORP NY LEWIS, RICE & FINGERSH, L.C.
5 SARNOWSKI DRIVE 500 N. BROADWAY, SUITE 2000
GLENVILLE, NEW YORK 12302 ST. LOUIS, MISSOURI 63102
(518) 381-3840 (314) 444-7600
(Name, Address, Including Zip
Code, and Telephone Number,
Including Area Code, of Agent For Service)
Approximate date of commencement of proposed sale to the public:
Inapplicable - no additional shares are being issued.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [X]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
Reg. No. ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title Of Each Proposed Proposed
Class of Amount Maximum Maximum Amount of
Securities To Be Offering Price Aggregate Registration
To Be Registered Registered(1)(2) Per Unit(3) Offering Price Fee
Common Stock 2,000,000 $11.30 $22,600,000.00 $2,660.02
Par Value
$1.00
(1) The securities registered hereunder include securities issued
pursuant to the terms of the TrustCo Bank Corp NY Dividend Reinvestment Plan
that provide for adjustments in the amount of securities being issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Does not include shares of common stock previously registered on
Registration Statement No. 333-99687 on Form S-3, as amended. Pursuant to
Rule 429 under the Securities Act of 1933, the prospectus that forms a part
of this registration statement shall also relate to 2,000,000 shares of
common stock previously registered for issuance and sale pursuant to
Registration Statement No. 333-99687. Registration fees in the amount of
$2,127.04 were previously paid to the Commission in connection with these
previously registered shares.
(3) Pursuant to Rule 457(c), represents the average of the high and
low reported prices for the Registrant's common stock as quoted on the
Nasdaq National Market System on April 4, 2005, such date being a date
within five business days prior to the date of filing of this
Registration Statement.
PROSPECTUS
TRUSTCO BANK CORP NY
COMMON STOCK
($1.00 Par Value)
Dividend Reinvestment Plan
This Prospectus describes the Dividend Reinvestment Plan of TrustCo
Bank Corp NY, which provides holders of record of TrustCo common stock with a
convenient and simple method of investing cash dividends and optional cash
payments. Any holder of record is eligible to participate in the Plan.
TrustCo common stock is listed on the Nasdaq National Market System under the
symbol "TRST."
If you are or become a participant in the Plan, you may
automatically reinvest into additional shares of common stock, cash dividends
on your existing shares of TrustCo common stock. You may also make cash
payments for the purchase of additional shares of TrustCo common stock.
This Prospectus relates to 4,000,000 shares of TrustCo common stock
registered for sale under the Plan. If there is any change in TrustCo's
shares by reason of stock dividends, stock splits or consolidation of shares,
recapitalizations, mergers, consolidations, reorganizations, combinations or
exchange of shares, the number and class of shares available for purchase
pursuant to the Plan will be appropriately adjusted. No adjustment will be
made, however, if TrustCo issues additional capital stock of any class for
consideration.
You should retain this Prospectus for future reference.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary
is a criminal offense.
The date of this Prospectus is April 11, 2005.
Table of Contents
Page
TrustCo Bank Corp NY 1
The Plan 1
Use of Proceeds 9
Available Information 9
Factors that May Affect Future Results 11
Commission Position on Indemnification 11
Legal Matters 12
Experts 12
TRUSTCO BANK CORP NY
TrustCo Bank Corp NY is the issuer of the common stock described in
this Prospectus. Our principal executive office is located at 5 Sarnowski
Drive, Glenville, New York 12302, and our telephone number is (518) 377-3311.
THE PLAN
The following questions and answers constitute our Dividend
Reinvestment Plan.
1. What Is a Dividend Reinvestment Plan?
A Dividend Reinvestment Plan is a method of investment in the
securities of a company that uses the cash dividends paid to you by the
company to invest in more shares of that company. Since dividend reinvestment
plans also allow for holding fractional shares (less than one share), all or
part of your dividend payment can be put to use efficiently and economically.
Another advantage of dividend reinvestment plans, including TrustCo's, is the
option to make cash payments into your dividend reinvestment plan account to
purchase additional shares. If you participate in a dividend reinvestment
plan, you, as a shareholder, have all the same rights as you would have if
you held the shares in a brokerage account or in certificate form in your
home or safe deposit box. You will be paid all stock dividends or splits and
receive proxies and annual tax information. Using a dividend reinvestment
plan also means you do not have to worry about losing certificates and the
expense of replacing them if they become lost.
2. What is the purpose of the Plan?
The Plan offers shareholders of record a convenient and economical
way to increase their ownership of shares of our common stock. Once you are
enrolled in the Plan, cash dividends paid by us and optional cash payments,
if any, made by you will be used to purchase additional shares of our common
stock. Shares of our common stock may be purchased directly from us or on the
open market. To the extent that shares of common stock are purchased under
the Plan from us, we will receive additional funds to be applied for general
corporate purposes. (The Plan's administrator may also purchase under the
Plan shares of our common stock on the open market.)
3. Who is eligible to participate?
Each person who is a record owner of shares of common stock is eligible
to participate in the Plan.
4. May I participate in the Plan if my shares of common stock are
registered in the name of a broker or nominee?
No. Shareholders whose shares of common stock are registered in the
name of a broker or nominee must first have those shares of common stock
transferred to their own name in order to participate in the Plan.
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5. How do I participate in the Plan?
If you are an eligible shareholder, you may join the Plan at any
time by completing and signing an Authorization Form and returning it to
Trustco Bank, the Plan's administrator. Authorization Forms will be furnished
upon written or oral request directed to Trustco Bank.
Dividends paid on shares of common stock held by Trustco Bank as the
Plan's administrator will be reinvested automatically in additional shares of
common stock.
6. When may I enter the Plan?
If your completed Authorization Form is received by the
administrator two weeks prior to the next record date for the payment of
dividends, then the dividends payable on your shares of common stock, and any
optional cash payments submitted by you with you Authorization Form, will be
used to purchase additional shares of common stock. If the completed
Authorization Form is not received by the administrator at least two weeks
prior to the next record date for the payment of dividends, the automatic
reinvestment of your dividends and investment of any optional cash payments
submitted by you will not start until the next purchase is made, as
determined by the administrator (see Question 11). The record dates for
payment of dividends on the shares of common stock are usually early in
December, March, June and September and the corresponding dividends are paid
early in January, April, July and October.
7. Who administers the Plan and what does such administration entail?
The Plan is currently administered by our wholly owned subsidiary,
Trustco Bank, which performs many of the ministerial tasks required in
connection with the Plan, such as (i) holding shares of common stock for the
Plan in its name or the name of its nominee; (ii) corresponding with Plan
participants; (iii) distributing Plan brochures, Authorization Forms, and
other documents; (iv) maintaining accounts for participants; (v) providing
statements of account to participants on a regular basis; (vi) effecting
stock and cash withdrawals by participants and terminations by participants;
(vii) processing proxy materials for shares of common stock held under the
Plan; (viii) determining whether shares of common stock to be acquired under
the Plan will be purchased on the open market or directly from TrustCo; (ix)
collecting and holding voluntary cash payments by participants; and (x) if
purchases are to be made on the open market, forwarding amounts for such
purchases to the agent for Plan participants for investment.
Trustco Bank, as the administrator, has designated Smith Barney to
act as agent for participants in purchasing and selling shares of common
stock on their behalf in the open market. If the administrator determines to
purchase shares of common stock on the open market with the dividends or
optional cash payments made by Plan participants, it will forward such
amounts to the agent and, as soon as possible following receipt thereof (and
in no event more than ten trading days thereafter), the agent will purchase,
in the open market, at such price or prices as the agent in its sole
discretion deems appropriate (in light of the paramount interest of Plan
participants in obtaining shares of common stock at the lowest prices
reasonably attainable), as many whole shares of common stock as may be
purchased with such amount.
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8. What does it cost to participate?
Beginning May 15, 2005, your costs for participating in the Plan are
as follows:
- If shares of our common stock are purchased directly from us, you
will not be charged any brokerage commissions, service charges or
other fees.
- If shares of our common stock are purchased on behalf of the
Plan in open-market transactions, you will be charged any
brokerage commissions (currently $0.06 per share), service
charges or other fees paid by the Plan's administrator or agent
with respect to the purchases. The decision regarding whether
shares of our stock will be purchased directly from us on the
open market will be made by Trustco Bank and will generally
depend on whether shares are available for acquisition from
TrustCo.
- If you sell through the Plan your shares of common stock, you
will be charged any brokerage commissions (currently $0.06 per
share), service charges or other fees paid by the Plan's
administrator or agent with respect to the sale plus a $15.00
fee.
- Inquiries by you or on your behalf that require Trustco Bank
personnel to research non-current records (such as requests for
prior year account statements) will be subject to a research
charge at a rate of $25.00 per hour. Research time will be
recorded in fifteen minute increments.
The fee structure is subject to change. If there are changes in the
fee structure, TrustCo will notify participants in advance of the effective
date of the changes.
9. What is the price of shares of common stock purchased from TrustCo?
The purchase of shares of common stock from us, out of treasury
shares or authorized but unissued shares, will be at a price equal to the
average of the high and low prices for shares of common stock on the
applicable purchase date (see Question 11), as reported on the Nasdaq
National Market or such other system as may supersede it. If the applicable
purchase date is not a trading day for Nasdaq market makers, the prices on
the next preceding trading day will be used to determine the purchase price.
10. What is the price of shares of common stock purchased on the open market?
Shares of common stock acquired by the agent on the open market will
be purchased at such price or prices as it, in its sole discretion, deems
appropriate (in light of the paramount interest of Plan participants in
obtaining shares of common stock at the lowest prices reasonably attainable).
The purchase price shown on participant account statements will include, as
noted in Item 8, any brokerage commission, service charges or other fees paid
by the Plan's administrator or agent with respect to the purchase.
11. When are purchases made?
Purchases will be made each week, except in weeks where the
aggregate amount of funds available for purchases does not exceed $1,000, in
which case the Plan administrator may elect to hold funds for purchases
during the next week in which the $1,000 threshold is reached. Purchases with
reinvested dividends will be made on, or as soon as possible after, each
dividend payment date, which have typically been in early January, April,
July, and October. All purchases on the open market will be made as soon as
possible after dividends and/or cash payments have been forwarded to the
agent, and in no event more than ten trading days from the receipt thereof.
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12. How many shares of common stock are purchased for me?
The number of shares of common stock purchased for you will depend
on the amount of your cash dividend on your previously-owned shares of common
stock in those months in which a dividend has been declared, the amount of
your optional cash payments, if any, and the purchase price of the shares of
common stock. Your account will be credited with that number of shares of
common stock, including fractions computed to three decimal places, equal to
the total amount invested by you plus the amount of dividends paid on shares
of common stock allocated to your Plan account, divided by the applicable
purchase price per share of common stock.
13. May cash be added to purchase additional shares of common stock?
Yes. If you elect to reinvest dividends in the Plan, you may also
elect to make optional cash payments to purchase additional shares of common
stock. You may not, however, elect to make optional cash payments unless you
also elect to reinvest cash dividends.
14. When may I make optional cash payments?
Optional cash payments may be made at any time and will be held by
the administrator until the next purchase is made. No interest will be paid
on any cash payments. Any cash payments received by the administrator will
not be returned.
15. What is the maximum aggregate amount that I can invest through optional
cash payments?
There is no limitation on the amount that you may invest through
optional cash payments other than the limitation on the number of shares
issuable pursuant to the Plan. Optional cash payments must, however, be in
the minimum amount of $25.00.
16. How may I make optional cash payments?
Each optional cash payment must be in the form of a check or money
order payable in U.S. funds to Trustco Bank and be accompanied by an
Authorization Form or the cash payment form attached to any periodic account
statement. Do not send currency or coin.
17. Will stock certificates be issued for shares of common stock held under
the Plan?
Normally, certificates for shares of common stock purchased under
the Plan will not be issued in your name but will be registered in the name
of Trustco Bank, as the Plan administrator, or its nominee and held for your
benefit and credited to your Plan account. Upon your written request to the
administrator, however, certificates for any number of whole shares of common
stock credited to your Plan account will be registered in your name
("participant name registration") and a certificate for such shares of common
stock will be issued. You may not request a participant name registration
more than twice in any twelve month period, and a participant name
registration will not be permitted for fractional shares of common stock held
in your account. Any such fractional share, as well as any whole shares of
common stock as to which a participant name registration is not requested,
will continue to be credited to your Plan account and all dividends on the
fractional and whole shares of common stock will continue to be reinvested in
the Plan. Dividends on all shares of common stock as to which participant
name registration is requested will continue to be reinvested in the Plan
unless you request to withdraw from participation in the Plan (see Question
20).
You may not pledge or assign shares of common stock credited to your
account under the Plan and registered in the name of the administrator or its
nominee. If you wish to pledge or assign such shares of common stock, you
must request participant name registration for the shares.
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18. What kind of reports will be sent to participants in the Plan?
As soon as practicable after the completion of each calendar
quarter, the Plan administrator will mail to you a statement indicating the
amount invested and the price per share of common stock, the number of shares
of common stock purchased, and the total number of shares of common stock
held in your account.
19. What are the federal income tax consequences of participation in the
Plan?
If shares of common stock have been purchased on your behalf with
reinvested dividends, you will realize a taxable dividend (i) in an amount
equal to the cash dividend if the stock is purchased on the open market, and
(ii) in an amount equal to the fair market value of the shares of common
stock credited to your account on the date the cash dividend is paid if the
common stock is purchased from TrustCo. No taxable income should be realized
on account of shares of common stock purchased under the Plan with optional
cash payments.
The tax basis of shares of common stock purchased with either
reinvested dividends or optional cash payments will be the cost (including
any fees, commissions, or other expenses) paid by you for such shares of
common stock.
If shares of common stock are purchased on the open market (whether
purchased with reinvested dividends or optional cash payments), the Internal
Revenue Service has ruled that you will also be treated as having received a
taxable dividend equal to your share of the brokerage commissions, service
charges and other fees, if any, paid by TrustCo in connection with the
purchases of such shares of common stock. The tax basis of shares of common
stock purchased in open market transactions also will include your share of
any such brokerage commissions, service charges, or fees payable by TrustCo
with respect to such purchases. The administrator will inform you of the
amount of such commissions, service charges, or other fees, if any, allocable
to purchases for your account.
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The holding period for shares of common stock credited to your
account under either the dividend reinvestment aspect of the Plan or the
optional cash payment aspect of the Plan will begin on the day following the
date the shares of common stock are purchased.
You will not recognize any taxable income when certificates are
issued to you for shares of common stock credited to your account, regardless
of whether the certificates are issued upon your request or upon your
withdrawal from or termination of the Plan.
You will recognize gain or loss when whole shares of common stock,
fractional shares of common stock, or stock rights held in your account are
sold or exchanged by the agent on your behalf or when you sell your shares of
common stock after withdrawal from or termination of the Plan (see Question
20). The character of such gain or loss will depend on your personal
circumstances. The amount of such gain or loss will be the difference between
the amount that you receive for the shares of common stock or stock rights
and your tax basis in such shares of common stock or rights.
The income tax consequences for participants who do not reside in
the United States will vary from jurisdiction to jurisdiction. In the case of
a foreign stockholder whose dividends are subject to United States income tax
withholding, the amount of the tax required to be withheld will be deducted
from the amount of dividends to determine the amount of dividends to
reinvest.
You should consult your own tax advisor to determine the particular
tax consequences that may result from your participation in the Plan and the
subsequent disposal by your of shares of common stock purchased pursuant to
the Plan.
20. How do I withdraw from the Plan?
You may discontinue your participation in the Plan by sending a
written notice of withdrawal to the Plan's administrator. The written notice
of withdrawal must be signed by you exactly as your name appears on the most
recent statement of account and must also be Medallion Guaranteed. The Plan's
administrator reserves the right to discontinue, in its sole discretion, your
participation in the Plan by sending written notice to that effect to you.
Upon your withdrawal or, discontinuance of your participation by the
administrator, or upon termination of the Plan by us, certificates for whole
shares of common stock credited to you under the Plan will be issued to you;
a cash payment also will be sent to you for any remaining fractional share.
The cash payment for fractional shares will be based on a price equal to the
actual sale price for shares sold.
Upon your withdrawal from the Plan, you may, if you desire, request
in the written notice of withdrawal referred to above that all or part of the
whole shares of common stock credited to your account under the Plan be sold.
Such sale will be made by the agent on the open market within ten trading
days after the Plan's administrator's receipt of the request. You will
receive the proceeds less a $15.00 fee, brokerage fees, commissions, and
transfer taxes, if any.
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21. When may I withdraw from the Plan?
You may withdraw from the Plan at any time.
If your written notice of withdrawal is received by the Plan's
administrator prior to the record date for the next dividend, the amount of
the cash dividend and/or any optional cash payments received that would
otherwise have been invested on that dividend payment date or weekly purchase
date during the following week will be returned to you. All subsequent cash
dividends will be paid directly to you unless you re-enroll in the Plan.
If your notice of withdrawal is received by the Plan's administrator
on or after the record date for the next dividend, the cash dividend paid on
such dividend payment date and/or any optional cash payment received will be
used to purchase shares of common stock under the Plan. Your withdrawal will
become effective after the dividend payment date or other purchase date, and
you will receive a certificate for the whole shares of common stock in your
account (or cash, if you elect to have the agent sell your shares), and you
will receive cash for any fractional shares (see Question 20). All subsequent
cash dividends will be paid directly to you unless you re-enroll in the Plan.
Upon your death, participation in the Plan will continue until the
administrator has received written notice of your death and the required
notice of withdrawal from an authorized legal representative.
22. What happens when I sell or transfer all of the shares of common stock
registered in my name?
If you sell or transfer all shares of TrustCo common stock
registered in your name, the Plan's administrator will continue to reinvest
the dividends on the shares of common stock credited to your account under
the Plan and registered in the name of the administrator or its nominee until
final account disposition instructions are received from you.
Because the Plan is intended to be available only to shareholders of
record, the administrator will attempt to contact by mail any participant who
is no longer a shareholder of record to determine final disposition of shares
of common stock credited to such participant's account under the Plan.
However, if at such time there is less than one full share of common stock
credited to the participant's account, in lieu of attempting to contact the
participant, the administrator will automatically close such account and pay
to the participant, at the latest known address, a cash settlement
(determined as described above in Question 20) in lieu of the fractional
share of common stock.
23. If I personally acquire additional shares of common stock after
enrolling in the Plan, will cash dividends on such shares
automatically be reinvested in the Plan?
Yes, if the certificates for such shares are issued in the same name
as the name on your Plan account.
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24. How will my shares of common stock be voted at meetings of shareholders?
For each meeting of shareholders, you will receive a proxy that
enables you to vote the shares of common stock registered in your name and in
the name of the Plan administrator or its nominee and credited to your
account under the Plan. As in the case of shareholders generally, if a proxy
card is returned properly signed and marked for voting, the shares of common
stock covered will be voted as marked. If a proxy card is returned properly
signed, but without indicating instructions as to the manner in which shares
of common stock are to be voted with respect to any item thereon, the shares
of common stock covered will be voted as stated on the proxy card. If the
proxy card is not returned, or if it is returned unsigned or improperly
signed, the shares of common stock covered will not be voted unless you vote
in person at the meeting.
25. What are the responsibilities of TrustCo and the Plan's administrator
and agent under the Plan?
The Plan's administrator and agent have no responsibility with
respect to the preparation and content of this Prospectus. TrustCo, the
administrator and the agent, in administering the Plan, will not be liable
for any act done in good faith or for any good faith omission to act,
including, without limitation, (i) for any claim resulting from the failure
to terminate your Plan participation upon your death prior to receipt of
legally sufficient instruction with respect thereto; (ii) for the price or
prices at which shares of common stock are purchased or sold for your account
pursuant to the provisions of the Plan; and (iii) for the time or times at
which such purchases of shares of common stock are made.
PLEASE RECOGNIZE THAT TRUSTCO AND THE PLAN'S ADMINISTRATOR AND AGENT
CANNOT ASSURE PARTICIPANTS OF PROFITS, OR PROTECT PARTICIPANTS
AGAINST LOSSES, ON SHARES OF COMMON STOCK PURCHASED AND/OR HELD
UNDER THE PLAN.
26. What happens if TrustCo declares a stock dividend or a stock split?
If there are any changes in TrustCo's shares by reason of stock
dividends, stock splits or consolidation of shares, recapitalizations,
mergers, consolidations, reorganizations, combinations, or exchange of
shares, any shares of common stock issued by TrustCo on shares of common
stock credited to your Plan account and registered in the name of the Plan's
administrator or its nominee will be added to your account. Any shares of
common stock issued by TrustCo on shares of common stock registered in your
name will be mailed directly to you in the same manner as to shareholders who
are not participating in the Plan.
27. May the Plan be changed or discontinued?
We reserve the right to suspend, modify, or terminate the Plan at
any time and to interpret and regulate the Plan as we deem necessary or
desirable in connection with the operation of the Plan. The Plan's
administrator reserves the right to resign at any time upon reasonable
written notice to us, and we may relieve the administrator of its duties at
any time upon like notice.
You will receive notice of any suspension, modification, or
termination of the Plan. Termination of the Plan will have the same effect
and will be accomplished as to you and each other participant as if you and
such other participant had completely withdrawn from participation in the
Plan (see Question 20).
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28. Where should correspondence regarding the Plan be directed?
All correspondence concerning the Plan should be addressed to:
Trustco Bank
Dividend Reinvestment Plan
P.O. Box 1082
Schenectady, New York 12301-1082
USE OF PROCEEDS
No determination has been made as to the specific uses by us of any
proceeds resulting from our sale of shares of common stock directly to the
Plan, in part because we have no precise method for estimating the number of
shares that will be purchased under the Plan, the number of such shares which
will be purchased from us (as opposed to on the open market), the timing, or
prices of such purchases. We currently intend to add any such proceeds to our
general funds to be used for our general corporate purposes.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and accordingly file annual, quarterly, and
special reports, proxy statements and other information with the Securities
and Exchange Commission. You may inspect and copy these filings at the SEC's
Public Reference Room at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. TrustCo's SEC filings are also available to the public
on the Internet at the website maintained by the SEC at http://www.sec.gov.
This Prospectus does not contain all the information set forth in the
Registration Statement relating to the shares to be sold under the Plan and
exhibits thereto which we have filed with the SEC under the Securities Act of
1933, as amended, and to which reference is hereby made.
The SEC allows us to "incorporate by reference" the information we
file with the SEC, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is considered to be part of this Prospectus, and later information
filed with the SEC will update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the
SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 until the Plan is terminated:
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1. TrustCo's Annual Report on Form 10-K for the fiscal year
ended December 31, 2004.
2. TrustCo's current reports on Form 8-K filed March 24, 2005,
February 15, 2005, February 2, 2005 and January 18, 2005.
3. All other reports filed by TrustCo pursuant to Sections 13(a)
or 15(d) of the Exchange Act since December 31, 2004.
4. The description of TrustCo's common stock which is
contained in TrustCo's Registration Statement on Form S-4
under the Securities Act of 1933, Registration No.
33-40379, effective date May 8, 1991, and an update of that
description contained in TrustCo Bank Corp NY's Current
Report on Form 8-K filed on July 9, 1991; and including any
amendment or report filed for purposes of updating such
description.
We will provide copies of all documents incorporated by reference,
other than exhibits to such documents, without charge to each person who
receives a copy of this Prospectus upon written or oral request to TrustCo
Bank Corp NY, 5 Sarnowski Drive, Glenville, New York 12302, Attention:
Corporate Secretary, Telephone Number (518) 377-3311.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, you
should not rely upon such information or representation upon as having been
authorized by TrustCo Bank Corp NY. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any securities other than
the securities offered hereby; nor does it constitute an offer to sell or
solicitation of an offer to buy any securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. The delivery of this Prospectus at any time does not imply that
information herein is correct as of any time subsequent to its date.
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FACTORS THAT MAY AFFECT FUTURE RESULTS
Except for the historical information contained herein, the matters
discussed in this Prospectus, as well as the Annual, Quarterly, and Special
Reports, and other information filed by us with the Securities and Exchange
Commission, may express "forward looking statements." Those "forward looking
statements" may involve risk and uncertainties, including statements
concerning future events or performance and assumptions and other statements
of historical facts.
We wish to caution readers not to place undue reliance on any
forward-looking statements, which speak only as of the date made. Readers are
advised that various risk factors, including, but not limited to: (1) credit
risk, (2) interest rate risk, (3) competition, (4) changes in the regulatory
environment, and (5) change in general business and economic trends, could
cause the actual results or circumstances for future periods to differ
materially from those anticipated or projected in the forward looking
statements.
COMMISSION POSITION ON INDEMNIFICATION
Sections 721-725 of the New York Business Corporation Law provide
for or permit the indemnification of our directors and officers under certain
circumstances. Generally, a corporation may indemnify a director or officer
of the corporation against any judgments, fines, amounts paid in settlement,
and reasonable expenses, if such director or officer acted in good faith and
for a purpose which he or she reasonably believed to be in the best interests
of the corporation and, in criminal actions, had no reasonable cause to
believe that his or her conduct was unlawful.
Article XI of our Amended and Restated Certificate of Incorporation
provides that the directors of TrustCo shall not be liable to the Company, or
its shareholders, for any breach of duty in such capacity to the fullest
extent elimination or limitation of director liability is permitted by the
New York Business Corporation Law.
Article 13, Section 13.2.1, of our Bylaws, as amended, expressly
provides that no indemnification may be made to or on behalf of any director
or officer if a judgment or other final adjudication adverse to the director
or officer establishes that his or her acts were committed in bad faith or
were the result of an act of deliberate dishonesty and were material to the
cause of action so adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not entitled.
Pursuant to Employment Agreements between us and certain of our
executive officers, we have agreed to indemnify such executives for acts or
decisions made by them in good faith while performing services for us, and we
shall use our best efforts to obtain insurance coverage relating thereto.
Pursuant to a policy of directors' and officers' insurance with
total annual limits of $30,000,000, our directors and officers are insured,
subject to the limits, exceptions, and other terms and conditions of such
policy, against liability for claims made against them for any actual or
alleged error or misstatement or misleading statement or act or omission or
neglect or breach of duty while acting in their individual or collective
capacities as directors or officers.
11
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling TrustCo pursuant to the foregoing provisions, we have been
informed that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
LEGAL MATTERS
The legality of the issue of the shares of common stock offered
hereunder has been passed upon for TrustCo by Lewis, Rice & Fingersh, L.C.,
St. Louis, Missouri.
EXPERTS
The consolidated annual financial statements of TrustCo as of
December 31, 2004 and 2003, and for each of the years in the three-year
period ended December 31, 2004, and management's assessment of the
effectiveness of internal control over financial reporting as of December 31,
2004, have been incorporated by reference herein and in the Registration
Statement in reliance upon the reports of KPMG LLP, independent registered
public accounting firm, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration Fee:......................................$2,660.02
Accountants' Fees*:........................................4,000
Printing and Engraving*:...................................5,000
Legal Fees*:..............................................10,000
Miscellaneous Expenses*:...................................1,500
Total.........................................$23,160.02
*Indicates estimated fees or expenses.
Item 15. Indemnification of Directors and Officers
Sections 721-725 of the New York Business Corporation Law provide
for or permit the indemnification of directors and officers of the
Registrant, a New York corporation, under certain circumstances. Generally, a
corporation may indemnify a director or officer of the corporation against
any judgments, fines, amounts paid in settlement and reasonable expenses, if
such director or officer acted, in good faith, for a purpose which he or she
reasonably believed to be in the best interests of the corporation and, in
criminal actions, had no reasonable cause to believe that his or her conduct
was unlawful.
Article XI of the Registrant's Amended and Restated Certificate of
Incorporation provides that to the fullest extent elimination or limitation
of director liability is permitted by the New York Business Corporation Law,
no directors of the corporation shall be liable to the corporation, or its
shareholders for any breach of duty in such capacity.
Article 13, Section 13.2, of the Registrant's Bylaws, as amended,
expressly provides that no indemnification may be made to or on behalf of any
director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his or her acts were committed in bad
faith or were the result of an act of deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not
entitled.
Pursuant to Employment Agreements between the Registrant and certain
of its executive officers, the Registrant provides that it shall indemnify
such executives for acts or decisions made by such executives in good faith
while performing services for the Registrant, and the Registrant shall use
its best efforts to obtain insurance coverage relating thereto.
Pursuant to a policy of directors' and officers' insurance with
total annual limits of $30,000,000, the directors and officers of the
Registrant are insured, subject to the limits, exceptions and other terms and
conditions of such policy, against liability for claims made against them for
any actual or alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty while acting in their individual or
collective capacities as directors or officers.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling TrustCo pursuant to the foregoing provisions, TrustCo 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
therefore is unenforceable.
Item 16. Exhibits
The following exhibits are submitted herewith:
5 Legal Opinion of Lewis, Rice & Fingersh, L.C.
23.1 Consent of Lewis, Rice & Fingersh, L.C. (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24 Powers of Attorney.
Item 17. 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 the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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) 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 the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Glenville, State of New York, on
April 8, 2005.
TrustCo Bank Corp NY
By /s/ Robert J. McCormick
Robert J. McCormick
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities shown and on April 8, 2005.
Name Title/Position
/s/ Robert J. President and Chief
Robert J. McCormick Executive Officer
(Principal Executive
Officer)
/s/ Robert T. Cushing Executive Vice President
Robert T. Cushing and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
* Director
_________________________________
Joseph A. Lucarelli
* Director
_________________________________
Anthony J. Marinello, M.D., PhD
* Director
_________________________________
Robert A. McCormick
* Director
_________________________________
William D. Powers
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* Director
_________________________________
William J. Purdy
* By: /s/ Robert M. Leonard
Attorney-in-Fact
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EXHIBIT INDEX
Reg. S-K
Item 601
Exhibit No.
Exhibit
5 Legal Opinion of Lewis, Rice & Fingersh, L.C.
23.1 Consent of Lewis, Rice & Fingersh, L.C. (included in Exhibit 5.1)
23.2 Consent of KPMG LLP.
24 Powers of Attorney
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