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N
ote of Caution Regarding
Forward-Looking Statements
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We
make certain forward-looking statements in this prospectus, any prospectus
supplement, and in the documents incorporated by reference into this prospectus
that are based upon our current expectations and projections about current
events. You should not rely on forward-looking statements in this prospectus, any
prospectus supplement, or the documents incorporated by reference. We intend
these forward-looking statements to be covered by the safe harbor provisions
for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995, and we are including this statement for purposes of these
safe harbor provisions. You can identify these statements from our use of the
words may, will, should, could, would, plan,
potential,
estimate, project, believe, intend, anticipate, expect,
target
and similar expressions. Examples of forward-looking statements include, but
are not limited to, estimates with respect to the financial condition, expected
or anticipated revenue, results of operations and business of the Company that
are subject to various factors which could cause actual results to differ
materially from these estimates. These factors include, but are not limited to,
general economic conditions, changes in interest rates, deposit flows, loan
demand, real estate values, and competition; changes in accounting principles,
policies, or guidelines; changes in legislation or regulations; and other
economic, competitive, governmental, regulatory, and technological factors
affecting the Companys operations, pricing, products and services.
You
should also consider carefully the statements under Risk Factors and other
sections of this prospectus, any prospectus supplement, and the documents we
incorporate by reference, which address additional facts that could cause our
actual results to differ from those set forth in the forward-looking
statements. We caution investors not to place significant reliance on the
forward-looking statements contained in this prospectus, any prospectus
supplement, and the documents we incorporate by reference.
Because
of these and other uncertainties, our actual future results, performance or
achievements, or industry results, may be materially different from the results
contemplated by these forward-looking statements. In addition, our past results
of operations do not necessarily indicate our future results. You should not
place undue reliance on any forward-looking statements, which speak only as of
the date they were made. We do not intend to update these forward-looking statements,
even though our situation may change in the future, unless we are obligated to
do so under the federal securities laws. We qualify all of our forward-looking
statements by these cautionary statements.
A
bout Tompkins Financial
Corporation
Tompkins
Financial Corporation is a registered financial holding company incorporated in
1995 under the laws of the State of New York and our common stock is listed on
the NYSE Amex (Symbol: TMP). Tompkins is headquartered at The Commons, Ithaca,
New York. Tompkins is the corporate parent of three community banks: Tompkins
Trust Company, The Bank of Castile and The Mahopac National Bank; an insurance
agency, Tompkins Insurance Agencies, Inc.; and a fee-based financial planning
and wealth management firm, AM&M Financial Services, Inc. The Company
operates in two business segments, banking and financial services. Financial
services activities include the results of the Companys trust, financial
planning, wealth management and broker-dealer services, risk management, and
insurance agency operations.
P
rospectus Summary
This
summary contains a general description of the securities we may offer. This
summary is not complete and does not contain all of the information that may be
important to you. For a more complete understanding of us and the terms of the
securities we will offer, you should read carefully this entire prospectus,
including the Risk Factors section of any prospectus supplement for the
securities and the other documents we refer to and incorporate by reference in
this prospectus. In particular, we incorporate important business and financial
information into this prospectus by reference.
The Securities We
May Offer
We
may use this prospectus to offer securities in an aggregate amount of up to
$50,000,000 in one or more offerings. A prospectus supplement, which we will
provide each time we offer securities, will describe the amounts, prices and
detailed terms of the securities and may describe risks associated with an
investment in the securities. We will also include in the prospectus
supplement, where applicable, information about material United States federal
income tax considerations relating to the securities. Terms used in this
prospectus will have the meanings described in this prospectus unless otherwise
specified.
We
may sell the securities to or through underwriters, dealers or agents or
directly to purchasers. We, as well as any agents acting on our behalf, reserve
the sole right to accept or to reject in whole or in part any proposed purchase
of our securities. Each prospectus supplement will set forth the names of any
underwriters, dealers or agents involved in the sale of our securities
described in that prospectus supplement and any applicable fee, commission or
discount arrangements with them.
Common Stock
We
may sell our common stock, with a par value of $0.10 per share. In a prospectus
supplement, we will describe the aggregate number of shares offered and the
offering price or prices of the shares.
3
Preferred Stock
We
may sell shares of our preferred stock in one or more series. In a prospectus
supplement, we will describe the specific designation, the aggregate number of
shares offered, the dividend rate or manner of calculating the dividend rate,
the dividend periods or manner of calculating the dividend periods, the ranking
of the shares of the series with respect to dividends, liquidation and
dissolution, the stated value of the shares of the series, the voting rights of
the shares of the series, if any, whether and on what terms the shares of the
series will be convertible or exchangeable, and whether and on what terms we
can redeem the shares of the series.
R
isk Factors
Before
making an investment decision, you should carefully consider the risks
described under Risk Factors in the applicable prospectus supplement and in
our most recent Annual Report on Form 10-K, and in our updates to those risk
factors in our Quarterly Reports on Form 10-Q, together with all of the other
information appearing in this prospectus or incorporated by reference into this
prospectus and any applicable prospectus supplement, in light of your
particular investment objectives and financial circumstances. In addition to
those risk factors, there may be additional risks and uncertainties of which
management is not aware or focused on or that management deems immaterial. Our
business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our securities
could decline due to any of these risks, and you may lose all or part of your
investment.
U
se of Proceeds
We
expect to use the net proceeds from the sale of any securities for general
corporate purposes, which may include:
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investing in, or extending
credit to, our operating subsidiaries;
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investments at the holding
company level;
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reducing or refinancing
existing debt;
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possible acquisitions;
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stock repurchases; and
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other purposes as
described in any prospectus supplement.
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Pending
such use, we may temporarily invest the net proceeds of any offering. The
precise amounts and timing of the application of proceeds will depend upon our
funding requirements and the availability of other funds. Except as indicated
in a prospectus supplement, allocations of the proceeds to specific purposes
will not have been made at the date of that prospectus supplement.
Rati
o of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
The
following table sets forth our consolidated ratio of earnings to combined fixed
charges and preferred dividends for the periods presented. You should read
these ratios in connection with our consolidated financial statements, including
the notes to those statements, incorporated by reference in this prospectus.
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For the three Months
Ended March 31
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For the Fiscal Years Ended December 31
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2009
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2008
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed
charges
(1)
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Including deposit interest
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2.10
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1.82
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1.87
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1.66
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1.84
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2.29
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2.63
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Excluding deposit interest
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3.99
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3.87
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3.73
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3.93
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5.13
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5.99
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5.61
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For purposes of calculating
the ratio of earnings to fixed charges, fixed charges are the sum of:
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interest cost, including
interest on deposits; and
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that portion of rent
expense estimated to be representative of the interest factor.
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(1)
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Currently, we have no
shares of preferred stock outstanding and have not paid any dividends on
preferred stock in the periods presented. Therefore, the ratio of earnings to
combined fixed charges and preferred stock dividends is identical to the
ratio of earnings to fixed charges.
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4
D
escription of Capital Stock
The
authorized capital stock of Tompkins consists of 25,000,000 shares of common
stock, par value $0.10 per share, and 3,000,000 shares of preferred stock, par
value $0.01 per share, which may be issued in series with such powers,
designations and rights as may be established from time to time by our Board of
Directors. As of July 20, 2009, there were 9,720,440 shares of common stock
issued and outstanding and no shares of preferred stock issued and outstanding.
Description
of Common Stock
General
Each
share of our common stock has the same relative rights as, and is identical in
all respects to, each other share of our common stock. Our common stock is
traded on the NYSE Amex under the symbol TMP. All of the outstanding shares
of common stock are, and any common stock issued and sold under this prospectus
will be, fully paid and nonassessable.
The
transfer agent and registrar for our common stock is American Stock Transfer
& Transfer Company, 59 Maiden Lane, Plaza Level, New York, New York 10038.
Dividends
The
holders of Tompkins common stock are entitled to share ratably in dividends
when and as declared by the Board of Directors out of legally available funds
therefor. The Companys Certificate of Incorporation permits the Board of
Directors to issue preferred stock with terms set by the Board, which terms may
include the right to receive dividends ahead of the holders of common stock.
Tompkins has no shares of preferred stock presently outstanding.
Cash
dividends on Tompkins common stock were paid on the 15th day of February, May,
August and November of 2008; and the 15th day of February and May of 2009. The
Companys ability to pay dividends is generally limited to earnings from the
prior year, although retained earnings and dividends from its subsidiaries may
also be used to pay dividends under certain circumstances. The Federal Reserve
Board generally prohibits holding companies from paying dividends except out of
operating earnings, and the prospective rate of earnings retention appears
consistent with the holding companys capital needs, asset quality and overall
financial condition. The Companys primary source of funds to pay for
shareholder dividends is receipt of dividends from its subsidiaries. Future
dividend payments to the Company by its subsidiaries will be dependent on a
number of factors, including the earnings and financial condition of each
subsidiary, and are subject to the regulatory limitations discussed in Note 18
Regulations and Supervision in Notes to Consolidated Financial Statements in
Part II, Item 8 of the Companys Annual Report on Form 10-K for the 2008 fiscal
year.
Liquidation Rights
In
the event of any liquidation, dissolution, or winding up of Tompkins, the
holders of shares of Tompkins common stock will be entitled to receive, after
payment of all the Companys debts and liabilities and after satisfaction of
all liquidation preferences applicable to the preferred stock, all remaining assets
of the Company available for distribution in cash or in kind.
Voting Rights
The
holders of the Companys common stock have one vote for each share held on any
matter presented for consideration at a shareholder meeting. The holders of
Tompkins common stock are not entitled to cumulative voting in the election of
directors.
No Preemptive Rights; Redemption and
Assessment
Holders
of shares of our common stock will not be entitled to preemptive rights with
respect to any shares that may be issued. Our common stock is not subject to
redemption or any sinking fund and the outstanding shares are fully paid and
non-assessable.
Securities Are Not Insured by the FDIC
Investments
in our securities will not qualify as deposits or savings accounts and will not
be insured or guaranteed by the FDIC or any other governmental agency and are
subject to investment risk, including the possible loss of principal.
Material Provisions of our Certificate of
Incorporation and Bylaws and New York Law
General.
Our Certificate of Incorporation and Bylaws contain certain provisions designed
to enhance the ability of our Board of Directors to deal with attempts to
acquire control of the Company. These provisions and the ability to set the
voting rights, preferences and other terms of any series of preferred stock
that may be issued, may be deemed to have an anti-takeover effect and may
discourage takeovers (which certain stockholders may deem to be in their best
interest). To the extent that such takeover attempts are discouraged, temporary
fluctuations in the market price of our common stock resulting from actual or
rumored takeover attempts may be inhibited. These provisions also could
discourage or make more difficult a merger, tender offer or proxy contest, even
though such transaction may be favorable to the interests of stockholders, and
could potentially adversely affect the market price of our common stock.
The
following briefly summarizes protective provisions that are contained in our
Certificate of Incorporation and Bylaws. This summary is necessarily general
and is not intended to be a complete description of all the features and
consequences of those provisions, and is qualified in its entirety by reference
to our Certificate of Incorporation and Bylaws.
5
Certificate
of Incorporation.
Our Certificate of Incorporation
provides that any business combination that would result in the disposition of
all or substantially all of our assets requires the affirmative vote of 80% of
our outstanding common shares in the case of a business combination involving a
person that is the beneficial owner of at least 20% of our common shares,
unless (1) such business combination has been approved by a majority of the
disinterested directors, or (2) a fair price is offered for the Companys
shares, the calculation of which is described in greater detail in Article VII
of our Certificate of Incorporation. The foregoing provisions may not be
amended, altered, changed or repealed without the affirmative vote of at least 80%
of the outstanding capital stock entitled to vote.
Statutory
Restrictions.
New
Yorks Business Corporations Law (the BCL) restricts certain business
combinations. The statute prohibits certain New York corporations from engaging
in a merger or other business combination with a holder of 20% or more of the
corporations outstanding voting stock (interested shareholder) for a period
of five years following acquisition of the stock unless the merger or other
business combination, or the acquisition of the stock, is approved by the
corporations board of directors prior to the date of the stock acquisition. If
the combination was not previously approved, the interested shareholder may
effect a combination after the five-year period only if a majority of the
shares not owned by the 20% shareholder vote in favor of the combination or the
aggregate amount of the offer meets certain fair price criteria. The provisions
of Section 912 of the BCL apply if and for so long as a New York
corporation has a class of securities registered under Section 12 of the
Exchange Act. We have not elected to opt out of these provisions of the BCL.
Omission
of Cumulative Voting
. The omission of cumulative
voting from the Companys Certificate of Incorporation may be considered
anti-takeover in nature. Cumulative voting entitles each stockholder to as many
votes as equal the number of shares owned by him or her multiplied by the
number of directors to be elected. A stockholder may cast all these votes for
one candidate or distribute them among any two or more candidates. Cumulative
voting is optional under the New York State Business Corporation Law.
Advance
Notice; Preferred Stock
. The Companys Bylaws contain
restrictions that may discourage other persons from attempting to acquire
control of the Company, including, without limitation, prohibitions on
shareholder action by written consent and advance notice requirements with
respect to matters to be voted upon at all shareholders meetings. In addition,
the Companys Certificate of Incorporation authorizes the issuance of up to
3,000,000 shares of preferred stock. The rights and preferences for any series
of preferred stock may be set by the Board of Directors, in its sole discretion
and without stockholder approval, and the rights and preferences of any such
preferred stock may be superior to those of the common stock and thus may
adversely affect the rights of holders of the common stock.
The
overall effect of the Certificate of Incorporation and Bylaw provisions
described above may be to deter a future tender offer or other takeover attempt
that some stockholders might view to be in their best interests as the offer
might include a premium over the market price of the Companys common stock at that
time. In addition, these provisions may have the effect of assisting the
Companys current management in retaining its position and place it in a better
position to resist changes which some shareholders may want to make if
dissatisfied with the conduct of the Companys business. In addition, the
existence of Supplemental Executive Retirement Plans for certain executive
officers (which plans include change in control provisions) could add to the
cost of a takeover of the Company. There are no other anti-takeover provisions
in the Certificate of Incorporation or Bylaws, and there are no present plans
to adopt other anti-takeover provisions.
Description
of Preferred Stock
General
As
of the date of this prospectus, 3,000,000 shares of preferred stock, par value
$0.01 per share, are authorized, of which none are issued and outstanding. Our
Board of Directors may authorize the issuance of one or more additional series
of preferred stock and may establish and designate series and the number of shares
and the relative rights, preferences and limitations of the respective series
of the preferred stock offered by this prospectus and the applicable prospectus
supplement. The shares of preferred stock, when issued and sold, will be fully
paid and nonassessable.
The
number of shares and all of the relative rights, preferences and limitations of
the respective future series of preferred stock authorized by the Board of
Directors will be described in the applicable prospectus supplement. The terms
of particular series of preferred stock may differ, among other things, in:
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designation;
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number of
shares that constitute the series;
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dividends
(which may be cumulative or noncumulative), the dividend rate, or the method
of calculating the dividend rate;
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dividend
periods, or the method of calculating the dividend periods;
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redemption
provisions, including whether, on what terms and at what prices the shares
will be subject to redemption at our option and whether a sinking fund will
be established;
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voting
rights;
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preferences
and rights upon liquidation or winding up;
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whether and
on what terms the shares will be convertible into or exchangeable for shares
of any other class, series or security of ours or any other corporation or
any other property (including whether the conversion or exchange is
mandatory, at the option of the holder or at our option, the period during
which conversion or exchange may occur, the initial conversion or exchange price
or rate and the circumstances or manner in which the amount of common or
preferred stock or other securities issuable upon conversion or exchange may
be adjusted);
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for
preferred stock convertible into our common stock, the number of shares of
common stock to be reserved in connection with, and issued upon conversion
of, the preferred stock (including whether the conversion or exchange is
mandatory, the initial conversion or exchange price or rate and the
circumstances or manner in which the amount of common stock issuable upon
conversion or exchange may be adjusted) at the option of the holder or our
option and the period during which conversion or exchange may occur; and,
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other rights
and privileges and any qualifications, limitations or restrictions of those
rights or privileges.
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Each
series of preferred stock will rank, with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up:
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junior to
any series of our capital stock expressly stated to be senior to that series
of preferred stock; and
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senior to
our common stock and any class of our capital stock expressly stated to be
junior to that series of preferred stock.
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Dividends
Dividends
will be payable as they are declared by our Board of Directors at such time or
times as it elects, and no holder of preferred stock will have any right to
receive any dividend unless and until that dividend has been declared by the
Board of Directors. The stated annual dividend may be declared and paid in
increments during each calendar year. In connection with each dividend payment,
the Board of Directors may set a record date in advance of the payment date for
the purpose of determining the holders of shares preferred stock who are
entitled to receive that dividend.
If
described in the applicable prospectus supplement, we may pay cumulative cash
dividends to the holders of preferred stock, when and as declared by the Board
of Directors or the committee, out of funds legally available for payment. The
prospectus supplement will detail, as applicable, the annual rate of dividends
or the method or formula for determining or calculating them, and the payment
dates and payment periods for dividends. In the event that dividends are
declared on the preferred stock, the Board of Directors or the committee will
fix a record date for any such payment of dividends, which will be paid on the
preferred stock to the holders of record on that record date.
We
will not declare, pay or set aside for payment any dividends on any preferred
stock ranking on a parity as to payment of dividends with the preferred stock
unless we declare, pay or set aside for payment dividends on all the
outstanding shares of preferred stock for all dividend payment periods ending
on or before the dividend payment date for that parity stock.
Unless
we have paid in full all unpaid cumulative dividends, if any, on the
outstanding shares of preferred stock, we may not take any of the following
actions with respect to our common stock or any other preferred stock ranking
junior or on parity with the preferred stock as to dividend payments (unless
otherwise described in the prospectus supplement):
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declare, pay
or set aside for payment any dividends, other than dividends payable in our
common stock;
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make other
distributions;
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redeem,
purchase or otherwise acquire our common stock or junior preferred stock for
any consideration; or
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make any
payment to or available for a sinking fund for the redemption of our common
stock or junior preferred stock.
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Conversion and Exchange
The
prospectus supplement will indicate whether and on what terms the shares of any
future series of preferred stock will be convertible into or exchangeable for
shares of any other class, series or security of the Company (including whether
the conversion or exchange is mandatory, at the option of the holder or our
option, the period during which conversion or exchange may occur, the initial
conversion or exchange price or rate and the circumstances or manner in which
the amount of common or preferred stock or other securities issuable upon
conversion or exchange may be adjusted). It will also indicate for preferred
stock convertible into common stock, the number of shares of common stock to be
reserved in connection with, and issued upon conversion of, the preferred stock
(including whether the conversion or exchange is mandatory, the initial
conversion or exchange price or rate and the circumstances or manner in which
the amount of common stock issuable upon conversion or exchange may be
adjusted) at the option of the holder or at our option and the period during
which conversion or exchange may occur.
Redemption
The
prospectus supplement will indicate whether, and on what terms, shares of any
future series of preferred stock will be subject to mandatory redemption or a
sinking fund provision. The prospectus supplement will also indicate whether,
and on what terms, including the date on or after which redemption may occur,
we may redeem shares of a series of the preferred stock.
7
Liquidation Rights
In
the event of any liquidation, dissolution or winding up of the Company, the
holders of shares of preferred stock will be entitled to receive, out of the
Companys assets available for distribution to shareholders, liquidating
distributions in an amount equal to the stated value per share of preferred
stock, as described in our Articles of Incorporation and/or the applicable
prospectus supplement, plus accrued and accumulated but unpaid dividends, if
any, to the date of final distribution, before any distribution is made to
holders of:
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any class or
series of capital stock ranking junior to the preferred stock as to rights
upon liquidation, dissolution or winding up; or
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our common
stock.
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However,
holders of the shares of preferred stock will not be entitled to receive the
liquidation price of their shares until we have paid or set aside an amount
sufficient to pay in full the liquidation preference of any class or series of
our capital stock ranking senior as to rights upon liquidation, dissolution or
winding up. Unless otherwise provided in the applicable prospectus supplement,
neither a consolidation or merger of Tompkins with or into another corporation
nor a merger of another corporation with or into Tompkins nor a sale or
transfer of all or part of the Companys assets for cash or securities will be
considered a liquidation, dissolution or winding up of Tompkins.
If,
upon any liquidation, dissolution or winding up of Tompkins, the Companys
assets then distributable are insufficient to pay in full the amounts payable
with respect to the preferred stock and any other preferred stock ranking on
parity with the preferred stock as to rights upon liquidation, dissolution or
winding up, the holders of the preferred stock and of that other preferred
stock will share ratably in any distribution in proportion to the full
respective preferential amounts to which they are entitled. After we have paid
the full amount of the liquidating distribution to which they are entitled, the
holders of the preferred stock will not be entitled to any further
participation in any distribution of assets by Tompkins.
Voting Rights
Unless
otherwise determined by our Board of Directors and indicated in the prospectus
supplement, holders of the preferred stock will not have any voting rights
except as from time to time required by law.
So
long as any shares of the preferred stock remain outstanding, we will not,
without the consent of the holders of at least a majority of the shares of
preferred stock outstanding at the time, voting together as one class with all
other series of preferred stock having similar voting rights that have been
conferred and are exercisable:
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issue or
increase the authorized amount of any class or series of stock ranking senior
to the outstanding preferred stock as to dividends or upon liquidation or
dissolution; or
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amend, alter
or repeal the provisions of our Articles, whether by merger, consolidation or
otherwise, so as to materially and adversely affect any power, preference or
special right of the outstanding preferred stock or its holders.
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P
lan
of Distribution
General
We
may sell the securities being offered hereby in one or more of the following
ways from time to time:
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through
agents to the public or to investors;
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to
underwriters for resale to the public or to investors;
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directly to
investors; or
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through a
combination of any of these methods of sale.
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We
will set forth in a prospectus supplement the terms of the offering, including:
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the name or
names of any agents or underwriters;
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the purchase
price of the securities being offered and the proceeds we will receive from
the sale;
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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any agency
fees or underwriting discounts and other items constituting agents or
underwriters compensation;
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any initial
public offering price;
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any
discounts or concessions allowed or re allowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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8
Agents
We
may designate agents who agree to use their reasonable efforts to solicit
purchases of our securities for a period of their appointment or to sell our
securities on a continuing basis.
Underwriters
If
we use underwriters for a sale of securities, the underwriters will acquire the
shares for their own account. The underwriters may resell the securities in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
underwriters may sell the securities directly or through underwriting
syndicates by managing underwriters. The obligations of the underwriters to
purchase the shares will be subject to the conditions set forth in the applicable
underwriting agreement. The underwriters will be obligated to purchase all the
shares if they purchase any of the shares. The underwriters may change from
time to time any initial public offering price and any discounts or concessions
the underwriters allow or reallow or pay to dealers. We may use underwriters
with whom we have a material relationship. We will describe the nature of any
such relationship in any prospectus supplement naming any such underwriter.
Underwriters,
dealers and agents that participate in the distribution of the securities may
be underwriters as defined in the Securities Act, and any discounts or
commissions they receive may be treated as underwriting discounts and
commissions under the Securities Act. We will identify in the applicable
prospectus supplement any underwriters, dealers or agents and will describe
their compensation.
We
may have agreements with the underwriters, dealers and agents to indemnify them
against various civil liabilities, including liabilities under the Securities
Act, or to contribute payments that the agents, underwriters, dealers and
remarketing firms may be required to make as a result of those civil
liabilities. Underwriters, dealers and agents and their affiliates may be customers
of, engage in transactions with, or perform services for us or our subsidiary
companies in the ordinary course of their businesses. In connection with the
distribution of the securities, we may enter into swap or other hedging
transactions with, or arranged by, underwriters or agents or their affiliates.
These underwriters or agents or their affiliates may receive compensation,
trading gain or other benefits from these transactions.
Direct Sales
We
may also sell shares directly to one or more purchasers without using
underwriters or agents.
Stabilization Activities
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under
the Exchange Act. Overallotment involves sales in excess of the offering size,
which create a short position. Stabilizing transactions permit bids to purchase
the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of these activities at any
time.
Trading Markets and Listing of Securities
Unless
otherwise specified in the applicable prospectus supplement, each class or
series of securities will be a new issue with no established trading market,
other than our common stock, which is listed on the NYSE Amex. Any shares of
common stock hereunder will be listed in the NYSE Amex. We may elect to list
any other class or series of securities on any additional exchange or market,
but we are not obligated to do so unless stated otherwise in a prospectus supplement.
It is possible that one or more underwriters may make a market in a class or
series of securities, but the underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. We cannot give
any assurance as to the liquidity of the trading market for any of the
securities.
Legal Matters
Unless
otherwise indicated in the applicable prospectus supplement, some legal
matters, including the validity of any securities offered pursuant to the
applicable prospectus supplement, will be passed upon for us by Harris Beach
PLLC, Ithaca, New York, our counsel, and for any underwriters and agents by
counsel selected by such underwriters or agents. Edward C. Hooks, a member of
Harris Beach PLLC and former director of Tompkins, owns shares of Tompkins
common stock. The aggregate number of shares beneficially owned by Mr. Hooks
equals less than 1% of our issued and outstanding common stock as of the date
of this prospectus.
Experts
The consolidated financial statements
of Tompkins Financial Corporation and subsidiaries as of December 31, 2008 and 2007,
and for each of the years in the three-year period ended December 31, 2008, and
managements assessment of the effectiveness of our internal control over financial
reporting as of December 31, 2008, which are included in our Annual Report on Form
10-K for the year ended December 31, 2008, have been incorporated by reference herein
and in the registration statement in reliance upon the reports of KPMG LLP, an independent
registered public accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
9
Part II
Information Not Required In Prospectus
|
|
Item 14.
|
Other Expenses of Issuance and Distribution
|
The
following table sets forth the estimated fees and expenses (all but the SEC
fees are estimates) payable by the registrant in connection with the filing of
this Form S-3 Registration Statement:
|
|
|
|
|
SEC
Registration Fee
|
|
$
|
2,790
|
|
Printing
Costs
|
|
|
0
|
|
Listing Fee
|
|
|
20,000
|
|
Transfer &
Disbursing Agent Fees
|
|
|
2,500
|
|
Legal Fees
and Expenses
|
|
|
20,000
|
|
Accounting
Fees and Expenses
|
|
|
10,000
|
|
Miscellaneous
Expenses
|
|
|
5,000
|
|
Total
|
|
$
|
60,290
|
|
|
|
Item 15.
|
Indemnification of Directors and Officers
|
Section
722 of the New York Business Corporation Law (the BCL) empowers a New York
corporation to indemnify any person who is, or is threatened to be, made party
to any action or proceeding (other than one by or in the right of the
corporation to procure a judgment in its favor), whether civil or criminal, by
reason of the fact that such person (or such persons testator or intestate),
was an officer or director of such corporation, or served at the request of
such corporation as a director, officer, employee, agent, or in any other
capacity, of another corporation or enterprise. The indemnity may include
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys fees actually and necessarily incurred by such person as a result of
such action or proceeding, or any appeal therein, provided that such officer or
director acted in good faith, for a purpose that he or she reasonably believed
to be in or, in the case of service for another corporation or enterprise, not
opposed to, the best interests of the corporation and, for criminal actions or
proceedings, in addition, had no reasonable cause to believe his or her conduct
was unlawful. A New York corporation may indemnify any officer or director
against amounts paid in settlement and reasonable expenses, including
attorneys fees, under the same conditions, except that no indemnification is
permitted in respect of (1) a threatened action, or a pending action which is
settled or otherwise disposed of, or (2) any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless
and only to the extent judicially approved. Where an officer or director is
successful on the merits or otherwise in the defense of an action referred to
above, the corporation must indemnify him or her against the expenses which
such officer actually and reasonably incurred.
In
accordance with Section 402(b) of the BCL, the Certificate of Incorporation of
the Company contains a provision to limit the personal liability of directors
of the Company to the fullest extent permitted under the BCL; provided,
however, that there shall be no limitation of a directors liability for acts
or omissions committed in bad faith, or that involved intentional misconduct or
a knowing violation of law, or from which a director personally gained a
financial profit or other advantage to which he or she was not legally
entitled. The effect of this provision is to eliminate personal liability of
directors to the Company and its shareholders for monetary damages for actions
involving a breach of their fiduciary duty of care, including any actions
involving gross negligence.
The
Companys Bylaws provide, in effect, that it will indemnify each of its
directors, officers and employees, and any director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
serving at its request who was or is a party or is threatened to be made a
party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact of such persons duties
to or on our behalf, to the fullest extent permitted by the BCL.
As
permitted by the BCL, Tompkins has purchased insurance policies which provide
coverage for its directors and officers in certain situations where the Company
cannot directly indemnify such directors or officers.
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
1.1
|
|
Form of
Underwriting Agreement*
|
|
|
|
5.1
|
|
Opinion of
Harris Beach PLLC
|
|
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
|
23.1
|
|
Consent of
KPMG LLP, Independent Registered Public Accounting Firm
|
|
|
|
23.2
|
|
Consent of
Harris Beach PLLC (contained in Exhibit 5.1 hereto)
|
|
|
|
24.1
|
|
Power of
Attorney (included on the signature page hereto)
|
|
|
*
|
To be filed
by amendment or under a Current Report on Form 8-K and incorporated herein by
reference.
|
10
(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;
|
|
|
|
|
|
(ii)
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement;
|
|
|
|
|
|
(iii)
To include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material change
to such information in the registration statement;
|
|
|
|
|
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not
apply if the registration statement is on Form S-3 and 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 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
|
|
|
|
|
(2)
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
|
|
|
|
(3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
|
|
|
|
(4)
That, for the purpose of determining liability under the Securities Act of
1933 to any purchaser:
|
|
|
|
|
|
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
|
|
|
|
|
|
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
|
|
|
|
|
(5)
That, for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser:
|
|
|
|
|
|
(i)
Any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424;
|
|
|
|
|
|
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
|
|
|
(iii)
The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
|
|
|
|
|
|
(iv)
Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
|
11
(b)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d)
The undersigned registrant hereby undertakes that:
|
|
|
|
(1)
For the purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
|
|
|
|
|
(2)
For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
|
|
|
|
12
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 Ithaca, state of New York, on this 21
st
day of July, 2009.
|
|
|
|
Tompkins Financial Corporation
|
|
|
|
|
By:
|
/s/ Stephen
S. Romaine
|
|
|
|
|
|
Chief
Executive Officer
|
Power Of Attorney
Each
individual whose signature appears below hereby designates and appoints Stephen
S. Romaine and Francis M. Fetsko, and each of them, either of whom may act
without joinder of the other, as his or her true and lawful attorney-in-fact
and agent (the Attorneys-in-Fact) with full power of substitution and
resubstitution, for such person and in such persons name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement and to sign any and
all additional registration statements relating to the same offering of
securities as this registration statement that are filed pursuant to Rule
462(b) of the Securities Act of 1933, which amendments may make such changes in
this registration statement as any Attorney-in-Fact deems appropriate, and
requests to accelerate the effectiveness of this registration statement, and to
file the same with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
Attorneys-in-Fact and each of them, 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 such person might or
could do in person, hereby ratifying and confirming all that such
Attorneys-in-Fact or either of them, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
Name
|
|
Capacity
|
|
Date
|
|
|
|
|
|
/s/ James J.
Byrnes
|
|
Chairman of
the Board
|
|
July 21,
2009
|
|
|
|
|
|
James J.
Byrnes
|
|
|
|
|
|
|
|
|
|
/s/ Stephen
S. Romaine
|
|
President
and Chief Executive Officer, Director
|
|
July 21,
2009
|
|
|
|
|
|
Stephen S.
Romaine
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/ James W.
Fulmer
|
|
Vice
Chairman, Director
|
|
July 21,
2009
|
|
|
|
|
|
James W.
Fulmer
|
|
|
|
|
|
|
|
|
|
/s/ Thomas
R. Salm
|
|
Vice
Chairman, Director
|
|
July 21,
2009
|
|
|
|
|
|
Thomas R.
Salm
|
|
|
|
|
|
|
|
|
|
/s/ Francis
M. Fetsko
|
|
Executive
Vice President, Chief Financial Officer
|
|
July 21,
2009
|
|
|
|
|
|
Francis M.
Fetsko
|
|
and
Treasurer (Principal Financial Officer and
|
|
|
|
|
Principal
Accounting Officer)
|
|
|
|
|
|
|
|
/s/ Russell
K. Achzet
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Russell K.
Achzet
|
|
|
|
|
|
|
|
|
|
/s/ John E.
Alexander
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
John E.
Alexander
|
|
|
|
|
|
|
|
|
|
/s/ Daniel
J. Fessenden
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Daniel J.
Fessenden
|
|
|
|
|
|
|
|
|
|
/s/ Reeder
D. Gates
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Reeder D.
Gates
|
|
|
|
|
|
|
|
|
|
/s/ James R.
Hardie
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
James R.
Hardie
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
/s/
Elizabeth W. Harrison
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Elizabeth W.
Harrison
|
|
|
|
|
|
|
|
|
|
/s/ Carl E. Haynes
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Carl E. Haynes
|
|
|
|
|
|
|
|
|
|
/s/ Patricia A. Johnson
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Patricia A. Johnson
|
|
|
|
|
|
|
|
|
|
/s/ Hunter R. Rawlings III
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Hunter R. Rawlings III
|
|
|
|
|
|
|
|
|
|
/s/ Thomas R. Rochon
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Thomas R. Rochon
|
|
|
|
|
|
|
|
|
|
/s/ William D. Spain, Jr.
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
William D. Spain, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ Michael H. Spain
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Michael H. Spain
|
|
|
|
|
|
|
|
|
|
/s/ Craig Yunker
|
|
Director
|
|
July 21,
2009
|
|
|
|
|
|
Craig Yunker
|
|
|
|
|
14
EXHIBIT INDEX
|
|
|
|
|
Exhibit
No.
|
|
Description
|
|
|
|
|
|
1.1
|
|
|
Form of
Underwriting Agreement*
|
|
|
|
|
5.1
|
|
|
Opinion of
Harris Beach PLLC
|
|
|
|
|
12.1
|
|
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
|
|
23.1
|
|
|
Consent of
KPMG LLP, Independent Registered Public Accounting Firm
|
|
|
|
|
23.2
|
|
|
Consent of
Harris Beach PLLC (contained in Exhibit 5.1 hereto)
|
|
|
|
|
24.1
|
|
|
Power of
Attorney (included on the signature page hereto)
|
|
|
*
|
To be filed
by amendment or under a Current Report on Form 8-K and incorporated herein by
reference.
|
15
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