Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CNY FINANCIAL CORPORATION
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 6036 16-1557490
(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)
CNY FINANCIAL CORPORATION
STOCK OPTION 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,
(607) 756-5643 White Plains, NY 10601
(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>
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Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to Registered Offering Price Per Aggregate Registration Fee
be Registered Share (1) Offering Price (2)
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<S> <C> <C> <C> <C>
Common Stock 340,690 Shares 18.50 $6,302,765 $1,909.93
$.01 par value
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</TABLE>
(1) The closing price of the common stock of CNY Financial Corporation (the
"Common Stock") on the Nasdaq National Market on June 21, 2000 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.
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.
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EXPLANATORY NOTE
CNY Financial Corporation (the "Registrant") entered into an Agreement
and Plan of Merger (the "Merger Agreement") with First Niagara Financial Group,
Inc., formerly Niagara Bancorp, Inc. ("First Niagara") and Niagara Merger Corp.
dated as of December 28, 1999. Under the terms of the Merger Agreement, the
Registrant will merge with Niagara Merger Corp, a subsidiary of First
Niagara. Upon the merger, all of the Registrant's issued and outstanding shares
of stock and outstanding stock options under its Stock Option and Incentive Plan
(the Plan") will be converted into the right of each Plan participant to receive
from First Niagara cash in the amount of $18.75 less the exercise price of the
options (weighted average price is $12.03), multiplied by the number of option
shares owned. The transaction will be accounted for using the purchase method.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information regarding the Registrant's
Plan required by Part I of this Registration Statement will be sent or given to
the participants in the 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. These documents and the documents
incorporated by reference in the registration statement pursuant to Item 3 of
Part II of this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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 Registrant 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:
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(a) The Company's latest Annual Report on Form 10-K (the "Annual Report") on the
Form 10-K for the fiscal year ended December 31, 1999 pursuant to the Exchange
Act.
(b) All other reports filed by the Registrant pursuant to Section 12 or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Annual Report.
(c) The description of the Registrant'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").
(d) Current report on Form 8-K filed with the SEC on January 6, 2000.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the 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 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:
ARTICLE ELEVEN:
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 General Corporation Law of the State of
Delaware, 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
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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
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"); provided, however, that, if the General
Corporation Law of the State of Delaware 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 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 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 General Corporation Law of the State of Delaware. 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 General Corporation Law of the State of Delaware, 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
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proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article 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, 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 of the
State of Delaware.
F. To the extent that any person who is or was or has agreed to become a
Director of the Corporation is made a witness to any action, suit of proceeding
to which he or she is not a party by reason of the fact that he or she was, is
or has agreed to become a Director or Officer of the Corporation, or, while a
Director or Officer of the Corporation, is or was serving or has agreed to serve
as a Director, Officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, at the request of the Corporation,
such person shall be indemnified against all costs, charges and expenses
actually and reasonable incurred by such person or on such person's behalf in
connection therewith. To the extent that any person who is or was or has agreed
to become an employee or agent of the Corporation is made a witness to any
action, suit or proceeding to which he or she is not a party by reason of the
fact that he or she was, is or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, at the request of the Corporation, such person may be
indemnified against all costs, charges and expenses actually and reasonable
incurred by such person or on such person's behalf in connection therewith.
G. 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 with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
H. 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.
ARTICLE TWELVE:
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
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in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the Director derived an
improper personal benefit. If the General Corporation Law of the State of
Delaware 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 General Corporation Law of the State of Delaware, 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.
ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement:
23.2 Independent Auditors' Consent
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
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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 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 June 23, 2000.
CNY FINANCIAL CORPORATION
By: /s/ WESLEY D. STISSER, JR.
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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.
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<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ WESLEY D. STISSER, JR. President, Chief Executive June 23, 2000
---------------------------- Officer and Director
Wesley D. Stisser, Jr. (principal executive officer)
/s/ STEVEN A. COVERT Executive Vice President and June 23, 2000
---------------------------- Chief Financial Officer
Steven A. Covert (principal financial and
accounting officer)
</TABLE>
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Name Title Date
---- ----- ----
/s/ JOSEPH H. COMPAGNI Director June 23, 2000
----------------------------
Joseph H. Compagni
/s/ PATRICK J. HAYES, M.D. Director June 23, 2000
----------------------------
Patrick J. Hayes, M.D.
/s/ ROBERT S. KASHDIN Director June 23, 2000
----------------------------
Robert S. Kashdin
/s/ HARVEY KAUFMAN Director June 23, 2000
----------------------------
Harvey Kaufman
/s/ DONALD P. REED Director June 23, 2000
----------------------------
Donald P. Reed
/s/ TERRANCE D. STALDER Director June 23, 2000
----------------------------
Terrance D. Stalder
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EXHIBIT INDEX
Exhibit No. Description Method of Filing
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23.1 Independent Auditors' Consent Filed herewith.
24 Power of Attorney Located on the signature page.
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