SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
COMMUNITY BANK SYSTEM, INC.
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(Exact name of registrant as specified in its charter)
Delaware 16-1213679
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5790 Widewaters Parkway, DeWitt, New York 13214
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(Address of Principal Executive Offices) (Zip Code)
Community Bank System, Inc. Employee Savings and Retirement Plan
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(Full title of the plan)
Sanford A. Belden, President and CEO, 5790 Widewaters Parkway, DeWitt, NY 13214
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(Name and address of agent for service)
(315) 445-2282
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
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Common Stock,
$1.25 par
value per
share ........ 125,000 shares $25.25 $3,156,250 $1088.36
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* Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and based upon the last sale reported by the Nasdaq National
Market on June 23, 1995.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
Exhibit Index on page 4.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Community Bank System, Inc. (the
"Company") (Exchange Act. File No. 001-11431) with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1994,
filed with the Commission on April 3, 1995;
(b) Annual Report on Form 11-K with respect to Community Bank System, Inc.
Employee Savings and Retirement Plan, filed with the Commission on
June 27, 1995.
(c) Quarterly Report on Form 10-Q, as amended by Form 10-Q/A, for the
quarterly period ended March 31, 1995, filed with the Commission on
June 27, 1995;
(d) Form 8-K Periodic Report filed with the Commission on February 27, 1995;
(e) The descriptions of the Company's Common Stock contained in the
Company's registration statements filed under section 12 of the
Securities Exchange Act of 1934, including any amendments or reports
filed for the purpose of updating such descriptions.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Officers and Directors.
Community Bank System, Inc. (the "Company") is a Delaware corporation.
Section 145 of the General Corporation Law of the State of Delaware ("DGCL")
provides that a Delaware corporation has the power to indemnify its officers and
directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any director of officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action or suit, provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such director or officer shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances, such director or officer is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director of
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation shall have power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such
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whether or not the corporation would have the power to indemnify him or her
against such liabilities under Section 145.
Article 9 of the Company's Certificate of Incorporation provides that the
Company's directors shall not be liable to the Company or its shareholders for
monetary damages as a result of breach of fiduciary duty, except for liability
for breach of a director's duty of loyalty, for acts not undertaken in good
faith, for a transaction from which a director derives a personal benefit, or
for liability arising under Section 174 of the DGCL.
Article 8 of the Bylaws of the Company provides that the Company shall
indemnify any person made, or threatened to be made, a party to an action, suit
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he is or was a director or officer of the Corporation.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, as amended, previously
filed with the Commission on May 30, 1995 as Exhibit 3.1 to the
Company's Registration Statement on Form S-2 (No. 33-58539) and
incorporated herein by reference.
4.2 Bylaws of the Company, as amended, previously filed with the
Commission on May 30, 1995 as Exhibit 3.2 to the Company's
Registration Statement on Form S-2 (No. 33-58539) and incorporated
herein by reference.
5 Opinion of Bond, Schoeneck & King, LLP as to the validity of certain
shares being registered.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Bond, Schoeneck & King, LLP (included in Exhibit 5.1).
24. Power of Attorney.
The Company has submitted the Community Bank System, Inc. Employee Savings
and Retirement Plan, as amended, to the Internal Revenue Service ("IRS"), and
will make all changes required by the IRS to qualify the Plan. Accordingly, no
opinion of counsel is being submitted as to the compliance of the Plan with the
requirements of ERISA.
Page 4 of 8
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Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. (a) To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement 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.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
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
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registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in DeWitt, New York on the 27th day of June, 1995.
COMMUNITY BANK SYSTEM, INC.
By: /s/ SANFORD A. BELDEN
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Sanford A. Belden
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.
Signature Title Date
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/s/ SANFORD A. BELDEN Director, President and CEO June 27, 1995
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Sanford A. Belden
* Treasurer June 27, 1995
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David G. Wallace
* Chairman of the Board June 27, 1995
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Earl W. MacArthur
* Director June 27, 1995
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William D. Stalder
Director
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Nicholas A. DiCerbo
* Director June 27, 1995
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Lee T. Hirschey
Director
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David C. Patterson
* Director June 27, 1995
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Richard C. Cummings
* Director June 27, 1995
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William M. Dempsey
* Director June 27, 1995
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William N. Sloan
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* Director June 27, 1995
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John M. Burgess
* Director June 27, 1995
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James A. Gabriel
* Director June 27, 1995
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Hugh G. Zimmer
* Director June 27, 1995
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Benjamin Franklin
*By: /s/ SANFORD A. BELDEN
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Sanford A. Belden,
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933, the trustee of
the Community Bank System, Inc. Employee Savings and Retirement Plan has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in DeWitt, New York on the 27th day of
June, 1995.
COMMUNITY BANK SYSTEM, INC.
EMPLOYEE SAVINGS AND
RETIREMENT PLAN
COMMUNITY BANK, N.A., Trustee
By: /s/ SANFORD A. BELDEN
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Sanford A. Belden
President and Chief Executive Officer
Page 8 of 8
EXHIBIT 5
June 27, 1995
Community Bank System, Inc.
5790 Widewaters Parkway
DeWitt, New York 13214
Gentlemen:
We have acted as counsel to Community Bank System, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "S-8 Registration Statement") filed with the Securities and
Exchange Commission with respect to the Community Bank System, Inc. Employee
Savings and Retirement Plan (the "Plan"). We have also acted as counsel to the
Company in connection with the Registration Statement on Form S-2 (No.
33-58539)(the "S-2 Registration Statement") filed with the Securities and
Exchange Commission, as amended, pertaining to the offering of 862,500 shares
(including 112,500 shares to cover an over-allotment option granted to the
underwriters) of its Common Stock with a par value of $1.25 (the "Common Stock
Offering"), and the offering of 90,000 shares of its Cumulative Perpetual
Preferred Stock, Series A, par value $1.00 per share (the "Preferred Stock
Offering"). Certain of the shares of Common Stock offered in the Common Stock
Offering are anticipated to be acquired by the Plan pursuant to a reserved share
program established as part of the Common Stock Offering. The remaining shares
of Common Stock acquired by the Plan have been or will be purchased
over-the-counter on the Nasdaq National Market.
With respect to the shares of Common Stock to be issued by the Company
pursuant to the S-2 Registration Statement, it is our opinion that, upon
consummation of the Common Stock Offering as described in the S-2 Registration
Statement upon the terms and conditions set forth therein (including the
reserved share program), the shares will be legally issued, fully paid and
non-assessable.
We hereby consent to the use of this letter as an exhibit to the S-8
Registration Statement.
Very truly yours,
BOND, SCHOENECK & KING, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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We consent to the incorporation by reference in the Registration Statement of
Community Bank System, Inc. on Form S-8 of our report dated January 27, 1995,
except for Note O as to which the date is February 21, 1995, on our audits of
the consolidated financial statements of Community Bank System, Inc., as of
December 31, 1994 and 1993 and for the years ended December 31, 1994, 1993 and
1992, which report is included in the Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Syracuse, New York
June 26, 1995
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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We consent to the incorporation by reference in the Registration Statement of
Community Bank System, Inc. on Form S-8 of our report dated April 28, 1995,
on our audits of the financial statements and supplemental schedules of
Community Bank System, Inc. Employee Savings and Retirement Plan as of
and for the years ended December 31, 1994 and 1993, which report is included
in the Annual Report on Form 11-K.
COOPERS & LYBRAND L.L.P.
Syracuse, New York
June 26, 1995
EXHIBIT 24
POWER OF ATTORNEY
FORM S-8 REGISTRATION STATEMENT
The undersigned hereby authorizes Sanford A. Belden as attorney-in-fact to
execute in his name and to file any amendments, including post-effective
amendments, to the Registration Statement on Form S-8 with respect to the
Community Bank System, Inc. Employees Savings and Retirement Plan.
/s/ DAVID G. WALLACE
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Signature
David G. Wallace
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Print Name
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SCHEDULE TO EXHIBIT 24
PURSUANT TO ITEM 601 OF REGULATION S-K
The foregoing form of Power of Attorney has also been signed by the
following members of the Company's Board of Directors:
Earl W. MacArthur
William D. Stalder
Lee T. Hirschey
Richard C. Cummings
William M. Dempsey
William N. Sloan
John M. Burgess
James A. Gabriel
Hugh G. Zimmer
Benjamin Franklin
