<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CNY FINANCIAL CORPORATION
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 6036 16-155490
(state or other jurisdiction of (Primary Standard (IRS Employer
incorporation or organization) Classification Code Number) Identification No.)
1 North Main Street, Cortland, New York 13045
(607) 756-5643
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
CORTLAND SAVINGS BANK
401(k) SAVINGS PLAN
(Full Title of the Plan)
------------------------
Wesley D. Stisser, Jr. COPIES TO:
President and Chief Executive Officer Jay L. Hack, Esq.
Cortland Savings Bank Serchuk & Zelermyer, LLP
1 North Main Street, Cortland, NY 13045 81 Main Street, White Plains, NY 10601
(607) 756-5643 (914) 761-2100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective. 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, check
the following box. /X/
<TABLE>
<CAPTION>
Title of each Class of Amount to be Registered Proposed Maximum Offering Price Proposed Maximum Amount of Registration
Securities to be Per Share (1) Aggregate Offering Price(2) Fee (3)
Registered
<S> <C> <C> <C> <C>
Common Stock 75,000 Shares $9-11/16 $726,562.50 $220.17
$.01 par value
Participation Interests N/A(4) N/A N/A N/A
</TABLE>
(1) The closing price of the common stock of CNY Financial Corporation (the
"Common Stock") on the Nasdaq National Market on December 21, 1998 in accordance
with Rule 457(c) under the Securities Act of 1933, as amended (the "Securities
Act").
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The securities of CNY Financial Corporation (the "Company" or the
"Registrant") to be purchased by Cortland Savings Bank 401(k) Savings Plan are
included in the amount shown for Common Stock. Accordingly, pursuant to Rule
457(h)(2), no separate fee is required for the participation interests. In
accordance with Rule 457(h) under the Securities Act, the registration fee has
been calculated on the basis of the number of shares of Common Stock that may be
purchased with the current assets of such Plan.
(4) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R.
SECTION 230.462.
<PAGE>
CNY FINANCIAL CORPORATION
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for Cortland Savings Bank
401(k) Savings Plan ("401(k) Plan") required by Part I of the Registration
Statement will be sent or given to the participants in the 401(k) Plan as
specified by Rule 428(b)(1). Such documents are not filed with the Securities
and Exchange Commission (the "SEC") either as a part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 in
reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this Registration Statement:
All documents filed by the Company pursuant to Sections 13(a) and (c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this registration statement and
be part hereof from the date of filing of such documents. Any statement
contained in this Registration Statement, or in a document incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein, or
in any other subsequently filed document which also is incorporated by reference
herein, modified or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Company's Registration Statement on Form S-1 originally filed by the
Company under the Securities Act of 1933 with the SEC on June 19, 1998, and as
amended on August 4, 1998, September 21, 1998 and October 26, 1998 (SEC File No.
333-57259).
(b) The description of the Company's Common Stock contained in the Registrant's
Form 8-A (File No. 0-24739), as filed with the SEC pursuant to Section 12(g) of
the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 12b-15
promulgated thereunder on August 4, 1998 and declared effective on August 12,
1998, as incorporated by reference from the Company's Registration Statement on
Form S-1 (SEC file No. 333-57259) declared effective on August 12, 1998.
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ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the 401(k) Plan has been
registered pursuant to Section 12 of the Exchange Act. Accordingly, a
description of the Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held
harmless against liability to the fullest extent permissible by the general
corporation law of Delaware as it currently exists or as it may be amended
provided any such amendment provides broader indemnification provisions than
currently exists. This indemnification applies to the Board of Directors or
committee thereof who administers the 401(k) Plan.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 11 and 12 of the
Registrant's Certificate of Incorporation provide as follows:
ELEVENTH:
A. Each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article
ELEVENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter and "advancement of expenses");
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provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
Director or Officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, services to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise. The rights to indemnification and
to the advancement of expenses conferred in Sections A and B of this Article
ELEVENTH shall be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a Director, Officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article ELEVENTH is not
paid in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expenses of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article ELEVENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article ELEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
subsidiary or Affiliate or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
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whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
F. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article ELEVENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
G. If this Article or any portion shall be invalidated on any ground by
any court of competent jurisdiction, the Corporation shall nevertheless
indemnify each Director or Officer, and may indemnify each employee or agent, of
the Corporation as to any costs, charges, expenses (including attorneys' fees
and expenses), judgments, fines and amounts paid in settlement with respect to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Corporation), to
the full extent permitted by any applicable portion of this Article that shall
not have been invalidated and to the fullest extent permitted by applicable law.
TWELFTH: A Director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability: (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the Director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or modification.
The Registrant is also permitted to maintain directors' and officers'
liability insurance covering its directors and officers and has obtained a
directors' and officers' liability and corporation reimbursement policy which
(subject to certain limits and deductibles): (i) insures officers and directors
of the Registrant against loss arising from certain claims made against them by
reason of their being such directors or officers, and (ii) insures the
Registrant against loss which it may be required or permitted to pay as
indemnification due its directors or officers for certain claims.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Registrant, the Registrant has been informed that, in
the opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8:
4 Stock Certificate of CNY Financial Corporation. (incorporated
herein by reference from the Registrant's Registration
Statement on Form S-1 filed with the SEC on June 19, 1998)
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (located on the signature page).
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the Prospectus any facts or events which, individually
or together, represent a fundamental change in the information 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 SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) Include any additional or changed material information on the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement unless the
information required by (i) and (ii) is contained in periodic reports filed by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into this Registration Statement;
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new Registration Statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering thereof.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the Offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the Plan's latest annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference
in the Registration Statement shall be deemed
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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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC 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 trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, 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 will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, CNY Financial
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S- 8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Cortland, State of New York, on December 21,
1998.
CNY FINANCIAL CORPORATION
By: /s/ Wesley D. Stisser, Jr.
----------------------------------
Wesley D. Stisser, Jr.
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 and on the dates indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Stisser and Mr. Covert) constitutes and appoints Wesley D.
Stisser, Jr. as the true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any or all amendments to the Form S-8
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the U.S. Securities and Exchange
Commission, respectively, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and things requisite
and necessary to be done as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C> <C> <C> <C> <C>
/s/ Wesley D. Stisser, Jr.
- ------------------------------ President and Chief December 21, 1998
Wesley D. Stisser, Jr. Executive Officer
(principal executive officer)
/s/ Steven A. Covert Executive Vice President and December 21, 1998
- ------------------------------ Chief Financial Officer
Steven A. Covert (principal financial and
accounting officer)
/s/ Donald P. Reed Director December 21, 1998
- ------------------------------
Donald P. Reed
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/s/ Patrick J. Hayes, M.D. Director December 21, 1998
- ------------------------------
Patrick J. Hayes, M.D.
/s/ Harvey Kaufman Director December 21, 1998
- ------------------------------
Harvey Kaufman
/s/ Joseph H. Compagni Director December 21, 1998
- ------------------------------
Joseph H. Compagni
/s/ Robert S. Kashdin Director December 21, 1998
- ------------------------------
Robert S. Kashdin
/s/ Terrance D. Stalder Director December 21, 1998
- ------------------------------
Terrance D. Stalder
</TABLE>
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THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the 401(k) Plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Cortland, State of New York, on December 21,
1998.
Cortland Savings Bank 401(k)
Savings Plan
By: s/ Wesley D. Stisser, Jr.
-------------------------------------------
Wesley D. Stisser, Jr.
Plan Administrator
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Method of Filing
- ----------- ----------- ----------------
<S> <C> <C> <C>
4 Stock Certificate of Incorporated herein by reference
CNY Financial Corporation from the Registrant's Registration
Statement on Form S-1 filed with the
SEC on June 19, 1998 and declared
effective on August 12, 1998.
23.2 Consent of KPMG Peat Filed herewith.
Marwick LLP
24 Power of Attorney Located on the signature page.
</TABLE>
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EXHIBIT 23.2
Independent Auditors' Consent
Board of Directors
CNY Financial Corporation:
We consent to incorporation by reference in the Registration Statement No.
333-57259 on Form S-8 of CNY Financial Corporation of our report dated March 19,
1998, relating to the consolidated balance sheets of Cortland Savings Bank and
subsidiary as of December 31, 1997 and 1996, and the related consolidated
statements of income, net worth, and cash flows for each of the years in the
three-year period ended December 31, 1997, which report has been incorporated by
reference in the Registration Statement on Form S-1 originally filed by CNY
Financial Corporation on June 19, 1998, and as amended on August 4, 1998,
September 21, 1998 and October 26, 1998.
/s/ KPMG Peat Marwick LLP
Syracuse, New York
December 18, 1998
