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As filed with the Securities and Exchange Commission on
December 23, 1996, Registration No. 333-18287
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CENTER BANKS INCORPORATED
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 33 East Genesee Street 16-1368745
(State or jurisdiction of Skaneateles, New York 13152 (I.R.S. Employer
incorporation or organization) (315) 685-2265 Identification No.)
(Address, including zip code, and
telephone number, including area code, of
Registrant's principal executive offices)
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</TABLE>
Gary L. Karl, Esq.
Harter, Secrest & Emery
431 East Fayette Street
Syracuse, New York 13202
(315) 474-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [X]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum Amount of
Amount To Be Offering Price Aggregate Registration
Title of Shares to be Registered Registered Per Share(1) Offering Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 75,000 $16.25 $1,218,750.00 $369.32
===========================================================================================================================
<FN>
(1)Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) of the Securities Act of
1933 and based upon the high and low prices of the shares of the
Registrant's common stock, par value $.01 per share ("Common Stock"), as
reported on the NASDAQ National Market System on December 17, 1996.
</TABLE>
Pursuant to Rule 416(a), there are also being registered hereby such
additional indeterminate number of shares of such Common Stock as may become
issuable by reason of stock splits, stock dividends, or similar transactions.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses of the Registrant in
connection with the sale and distribution of the Common Stock being registered.
All amounts shown are estimates, except the Commission's registration fee.
Commission registration fee $ 369.32
Fees and expenses of the Plan Administrator $ 1,000.00
Printing and mailing expenses $ 3,000.00
Fees and expenses of Registrant's counsel $ 6,000.00
Accounting and related expenses $ 6,000.00
Miscellaneous $ 2,000.00
Total $18,369.32
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with Sections 145 and 102(b)(7) of the General Corporation
Law of the State of Delaware, which allow corporations to indemnify and
eliminate personal liability for officers and directors, respectively, the
Registrant's Certificate of Incorporation and By-laws provide, respectively, as
follows:
Certificate of Incorporation
- ----------------------------
Article 6 of the Registrant's Certificate of Incorporation provides, in
part, that no director shall be personally liable to the Registrant or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director, except for liability: (i) for any breach of the
director's duty of loyalty to the Corporation or its shareholders; (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 General Corporation Law
of Delaware for approval of an unlawful dividend or an unlawful stock purchase
or redemption; or (iv) for any transaction from which the director derived any
improper personal benefit. Any repeal or modification of the foregoing by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Registrant for acts or omissions occurring prior to the effective date of such
repeal or modification.
By-laws
- -------
Article IX of the Registrant's By-laws reads as follows:
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other
Than Those by or in the Right of the Corporation. Subject to Section 3 of this
Article IX, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, and any appeal therein, whether civil, criminal,
administrative, arbitrative or investigative (other than any action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, trustee, employee or agent of the Corporation, or is or
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was serving at the request of the Corporation as a director, officer, trustee,
employee or agent of another corporation, association, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
and any appeal therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding, and any appeal therein, by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article IX, the
Corporation shall indemnify any person 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 he is or was a director, officer, trustee, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against amounts paid in
settlement and expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; provided, however, that
no indemnification shall be made against expenses in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Corporation or against amounts paid in settlement unless and only to the extent
that there is a determination (as set forth in Section 3 of this Article IX)
that despite the adjudication of liability or the settlement, but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses or amounts paid in settlement.
Section 3. Authorization of Indemnification. Any indemnification under
this Article IX (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, trustee, employee or agent is proper
in the circumstances because such director, officer, trustee, employee or agent
has met the applicable standard of conduct set forth in Section 1 or Section 2
of this Article IX and, if applicable, is fairly and reasonably entitled to
indemnity as set forth in the proviso in Section 2 of this Article IX, as the
case may be. Such determination shall be made (i) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the shareholders. To the extent,
however, that a director, officer, trustee, employee or agent of the Corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case. No director, officer, trustee, employee or
agent of the Corporation shall be entitled to indemnification in connection with
any action, suit or proceeding voluntarily initiated by such person unless the
action, suit or proceeding was authorized by a majority of the entire board of
directors.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article IX a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any association, partnership, joint venture, trust or
other enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent. The provisions
of this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standards of conduct set forth in Sections 1 or 2 of this Article IX as the case
may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article IX and
notwithstanding the absence of any determination thereunder, any director,
officer, trustee, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article IX. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the director, officer, trustee, employee or agent is proper
in the circumstances because he has met the applicable standards of conduct set
forth in Sections 1 and 2 of this Article IX, as the case may be. Notice of any
application for indemnification pursuant to this Section S shall be given to the
Corporation promptly upon the filing of such application. Notwithstanding any of
the foregoing, unless otherwise required by law, no director, officer, trustee,
employee or agent of the Corporation shall be entitled to indemnification in
connection with any action, suit or proceeding voluntarily initiated by such
person unless the action, suit or proceeding was authorized by a majority of the
entire board of directors.
Section 6. Expenses Payable in Advance. Expenses incurred in connection
with a threatened or pending action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, trustee, employee or agent to repay such amount if it shall be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article IX.
Section 7. Contract, Non-exclusivity and Survival of Indemnification.
The indemnification provided by this Article IX shall be deemed to be a contract
between the Corporation and each director, officer, employee and agent who
serves in such capacity at any time while this Article IX is in effect, and any
repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter brought based in whole or
in part upon any such state of facts. Further, the indemnification and
advancement of expenses provided by this Article IX shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any certificate of incorporation,
bylaw, agreement, contract, vote of shareholders or disinterested directors or
pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that, subject to the limitation in Section 3 of this Article IX
concerning voluntary initiation of actions, suits or proceedings,
indemnification of the persons specified in Sections 1 and 2 of this Article IX
shall be
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made to the fullest extent permitted by law. The provisions of this Article IX
shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article IX but whom the Corporation has the
power or obligation to indemnify under the provisions of the law of the State of
Delaware. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, trustee, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, trustee,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another
corporation, association, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power or the obligation to indemnify him against such liability
under the provisions of this Article IX.
Section 9. Meaning of "Corporation" for Purposes of Article IX. For
purposes of this Article IX references to "the Corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IX with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
General Effect
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The general effect of the aforementioned provisions of the Registrant's
Certificate of Incorporation and By-laws is to eliminate the rights of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages in the event of a breach
of fiduciary duty as a director (including breach of duty in the case of
negligent or grossly negligent behavior) except in situations as described
above. The aforementioned provisions will not affect the availability of
injunctive relief against directors of the Registrant (although such relief may
not always be available as a practical matter) nor will it limit directors'
liability for violations of the federal securities laws.
ITEM 16. LIST OF EXHIBITS
EXHIBIT 1 - UNDERWRITING AGREEMENT
Not applicable
EXHIBIT 2 - PLAN OF ACQUISITION, REORGANIZATION, ARRANGEMENT, LIQUIDATION OR
SUCCESSION
Not applicable
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EXHIBIT 4 - INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES
4.1 Specimen Certificate representing the Common Stock of the
Registrant.
4.2 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's 1990 Form 10-K filed with the
Commission on April 1, 1991).
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's 1994
Form 10-K filed with the Commission on March 31, 1994).
4.4 By-laws of the Registrant (incorporated by reference to Exhibit 3.3
to the Registrant's 1994 Form 10-K filed with the Commission on March 31, 1994).
EXHIBIT 5 - OPINION RE: LEGALITY
5.1 Opinion of Harter, Secrest & Emery
EXHIBIT 8 - OPINION RE: TAX MATTERS
Not applicable
EXHIBIT 12 - STATEMENTS RE: COMPUTATION OF RATIOS
Not applicable
EXHIBIT 15 - LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION
Not applicable
EXHIBIT 23 - CONSENTS OF EXPERTS AND COUNSEL
23.1 Consents of KPMG Peat Marwick LLP*
23.2 Consent of Harter, Secrest & Emery (filed as Exhibit 5.1 to this
Registration Statement)
EXHIBIT 24 - POWER OF ATTORNEY
Not applicable
EXHIBIT 25 - STATEMENT OF ELIGIBILITY OF TRUSTEE
Not applicable
EXHIBIT 26 - INVITATIONS FOR COMPETITIVE BIDS
Not applicable
- --------
*Exhibit filed herewith
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EXHIBIT 27 - FINANCIAL DATA SCHEDULE
Not applicable
EXHIBIT 99 - ADDITIONAL EXHIBITS
99.1 Form of Authorization Card
- --------
*Exhibit filed herewith
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ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this
Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in this City of Syracuse, State of New York, on December 17, 1996.
CENTER BANKS INCORPORATED
By: /s/ John P. Driscoll
---------------------------------
John P. Driscoll
Chairman of the Board of Directors,
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ John P. Driscoll Chairman of the Board of December 17, 1996
- ------------------------------- Directors, President and Chief
John P Driscoll Executive Officer (Principal
Executive Officer)
/s/ J. Daniel Mohr Chief Financial Officer and December 17, 1996
- ------------------------------- Treasurer (Principal Financial
J. Daniel Mohr Officer and Principal
Accounting Officer)
/s/ Clifford C. Abrams Director December 17, 1996
- -------------------------------
Clifford C. Abrams
/s/ Israel Berkman Director December 17, 1996
- -------------------------------
Israel Berkman
Director
- -------------------------------
David E. Blackwell
/s/ Walter D. Copeland Director December 17, 1996
- -------------------------------
Walter D. Copeland
/s/ Carl W. Gerst Director December 17, 1996
- -------------------------------
Carl W. Gerst
</TABLE>
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[S] [C] [C]
/s/ John Bernard Henry Director December 17, 1996
- ---------------------------------------
John Bernard Henry
/s/ Ann G. Higbee Director December 17, 1996
- ---------------------------------------
Ann G. Higbee
Director
- ---------------------------------------
Bruce H. Leslie
/s/ Howard J. Miller Director December 17, 1996
- ---------------------------------------
Howard J. Miller
/s/ Raymond C. Traver, Jr. Director December 17, 1996
- ---------------------------------------
Raymond C. Traver, Jr., M.D.
/s/ Ann E. O'Connor Director December 17, 1996
- ---------------------------------------
Anne E. O'Connor
<PAGE> 1
EXHIBIT 23.1
Consent of KPMG Peat Marwick LLP
[Letterhead of KPMG Peat Marwick LLP]
The Board of Directors
Center Banks Incorporated:
We consent to incorporation by reference in the Registration Statement on Form
S-3 of Center Banks Incorporated of our report dated March 15, 1996 relating to
the balance sheet of Cicero Bank as of December 31, 1995 and the related
statements of operations, changes in stockholders' equity and cash flows for the
year then ended which report appears in the Form 8-K/A of Center Banks
Incorporated dated April 18, 1996. Our report refers to a change in accounting
for impaired loans in 1995, and to the fact that the Bank has not fully
satisfied two of thirteen provisions of the Bank's April 1993 Memorandum of
Understanding from the Federal Deposit Insurance Corporation and the State of
New York Banking Department.
We also consent to the reference to our firm under the heading "Experts" in the
Prospectus.
/s/ KPMG Peat Marwick LLP
Syracuse, New York
December 13, 1996
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Exhibit 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
The Board of Directors
Center Banks Incorporated:
We consent to incorporation by reference in the Registration Statement on Form
S-3 of Center Banks Incorporated of our report dated January 23, 1996, relating
to the consolidated balance sheets of Center Banks Incorporated and subsidiary
as of December 31, 1995 and 1994 and the related consolidated statements of
income, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1995, which report is incorporated by
reference in the December 31, 1995 annual report on Form 10-K of Center Banks
Incorporated. Our report refers to a change in accounting for impaired loans at
January 1, 1995.
We also consent to the reference to our firm under the heading "Experts" in the
Prospectus.
/s/ KPMG PEAT MARWICK LLP
Syracuse, New York
December 13, 1996
