<PAGE> 1
As filed with the Securities and Exchange Commission on January 27, 1997
Registration No. 33____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CENTER BANKS INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 16-1368745
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
33 East Genesee Street
Skaneateles, New York 13152
(315) 685-2265
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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Center Banks Incorporated Employee Stock Purchase Plan
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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)
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
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
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock, par value $.01 per share 50,000 16.75 837,500 253.79
===========================================================================================================================
<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, as reported on the
NASDAQ National Market System on January 22, 1997.
</TABLE>
Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement relates to an indeterminate amount of interests to be
offered as sold pursuant to the employee benefit plan described herein.
<PAGE> 2
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Registrant previously filed with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1995, filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act");
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996 and September 30, 1996, filed pursuant to
Section 13 of the Exchange Act;
(c) Proxy statement on Schedule 14A dated April 16, 1996, filed
pursuant to Section 14 of the Exchange Act; and
(d) Current Report on Form 8-K dated January 2, 1996, Current Report
on Form 8-K dated February 2, 1996, Current Report on Form 8-K
dated February 5, 1996, Current Report on Form 8-K00 dated
February 6, 1996, Current Report on Form 8-K/A dated April 18,
1996 and Current Report on Form 8-K dated December 20, 1996,
filed pursuant to Section 13 of the Exchange Act.
All reports subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, after the date of this
Registration Statement (and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold) shall be deemed to be incorporated by
reference into this Registration Statement and to be made a part hereof from the
date of filing of such documents. In lieu of incorporating by reference the
description of the Common Stock, par value $.01, which is contained in a
registration statement under the Exchange Act, such description is included in
this Registration Statement. See "Item 4 - Description of Capital Stock."
ITEM 4. DESCRIPTION OF CAPITAL STOCK
The Registrant's authorized capital stock consists of 2,500,000 shares
of common stock, par value $.01 per share (the "Common Stock"), of which 948,092
shares were issued and outstanding as of December 31, 1996, and 500,000 shares
of preferred stock, par value $.01 per share, of which none have been issued.
The Common Stock is traded on the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ") under the symbol "CTBK."
<PAGE> 3
The Common Stock
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Holders of the Common Stock are entitled to one vote for each share of
Common Stock held on all matters submitted to a vote of stockholders.
The holders of Common Stock are entitled to receive, pro rata,
dividends, when and as declared by the Board of Directors out of funds legally
available therefor. Funds for the payment of cash dividends on Common Stock are
obtained primarily from dividends from the Registrant's wholly owned subsidiary,
Skaneateles Savings Bank (the "Bank"). The Bank's ability to pay dividends to
the Company is restricted by statutory and regulatory limitations.
The Registrant is also subject to the requirements of the Delaware
General Corporation Law, which limits distributions to stockholders, including
the payment of cash dividends, if after giving effect to the distribution: (i)
the Registrant would not be able to pay its debts as they become due in the
usual course of business; or (ii) the Registrant's total assets would be less
than the sum of its total liabilities plus the amount that would be needed, if
the Registrant were dissolved at the time of the distribution, to satisfy the
preferential rights, if any, of stockholders whose rights upon dissolution are
superior to those stockholders receiving the distribution.
In the event of any liquidation or dissolution of the Registrant, the
holders of the Common Stock will be entitled to receive, after payment or
provision for payment of all debts and liabilities of the Registrant, all assets
of the Registrant available for distribution, in cash or in kind.
The Common Stock has no conversion rights and is not subject to call for
redemption. The holders of the Common Stock do not have the right of cumulative
voting in connection with the election of directors and are not entitled to
preemptive rights to subscribe for any additional shares of Common Stock which
may be issued. Upon receipt by the Registrant of the full purchase price for
Common Stock issued at or above par value, each share of Common Stock will be
fully paid and nonassessable.
In the future, the authorized but unissued and unreserved shares of
Common Stock will be available for general corporate purposes, including, but
not limited to, possible issuance in future public offerings or private
placements, as additional shares of Common Stock pursuant to the Plan, pursuant
to stock option or employee stock ownership plans, in future mergers or
acquisitions, as stock dividends or stock splits (subject to any applicable
regulatory restrictions), or for any other general corporate purposes.
Authorized but unissued shares of Preferred Stock may be issued for similar
purposes. Except as otherwise may be required to approve the transaction in
which the additional shares of the Common Stock or Preferred Stock would be
issued, no stockholder approval will be required for the issuance of such stock.
Accordingly, the Board of Directors of the Registrant may issue, without
stockholder approval, Preferred Stock with voting stock and conversion rights
which could adversely affect the voting power of the holders of the Common
Stock.
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<PAGE> 4
See "Restrictions on Acquisitions of Stock" for a description of certain
statutory provisions and provisions of the Registrant's Certificate of
Incorporation and By-laws which may affect the ability of the Registrant's
stockholders to participate in certain transactions relating to acquisitions of
control of the Registrant.
Restrictions on Acquisitions of Stock
- -------------------------------------
Federal Law Restrictions. Under the Bank Holding Company Act of 1956
(the "BHCA"), no company directly or indirectly may acquire "control" of the
Registrant or the Bank without the prior approval of the Federal Reserve Board.
For purposes of the BHCA, "control" is defined to include the ownership, control
or power to vote, directly or indirectly, 25% or more of any class of voting
securities of an entity, the power to elect a majority of the Board of Directors
of an entity, or the power to exercise a controlling influence over the
management or policies of an entity. The Federal Reserve Board may find that a
company controls a bank or a bank holding company if the company owns, controls,
or holds with power to vote more than 5% of the outstanding shares of any class
of voting securities of the bank or bank holding company and certain other
relationships exist between the company and the bank or the bank holding
company. In addition, Federal Reserve Board approval would be required for the
acquisition of control by another bank holding company of more than 5% of any
class of the Registrant's voting securities.
The Change in Bank Control Act of 1978 (the "CBCA") generally requires
persons (except for companies subject to the BHCA) that seek to acquire direct
or indirect control of a bank to give 60 days prior written notice to the
appropriate federal banking agency, which in the case of the Bank is the FDIC.
Control for the purposes of the CBCA exists if an acquiring person has voting
control of at least 25% of the institution's voting stock or the power to direct
the management or policies of the institution. Control is presumed to exist if
the acquiring person has voting control of at least 10% of the institution's
voting stock if (i) the institution's shares are registered pursuant to Section
12 of the Exchange Act, or (ii) the acquiring person would be the largest
stockholder of the institution.
Provisions Relating to Classified Board of Directors. The Registrant's
Certificate of Incorporation provides that the Board of Directors shall be
divided into three classes, as nearly equal in number as possible, each of which
shall serve for a term of three years, with one class being elected each year.
The Certificate of Incorporation also provides that directors may be removed
only for cause and then only with the approval of the holders of at least
two-thirds of the voting stock of the Registrant. The affirmative vote of the
holders of two-thirds of the voting stock of the Registrant is required to
amend, repeal or adopt any provision inconsistent with the foregoing provisions.
In addition, for certain business combinations, the affirmative vote of the
holders of four-fifths of the voting stock of the Registrant is required. Such
provisions may make it more difficult and time-consuming to acquire majority
control of the Board of Directors of the Registrant and may, therefore, dissuade
unsolicited take-over proposals.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. 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 Registrant 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 Registrant 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 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
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<PAGE> 6
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.
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
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<PAGE> 7
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 5 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
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<PAGE> 8
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 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
- --------------
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 the 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
EXHIBIT 4 - INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING
INDENTURES
4.1 Specimen Certificate representing the Common Stock of the Registrant
(incorporated by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-3 filed with the Commission on December 19, 1996).
4.2 Certificate of Incorporation of the Registrant (incorporated by
reference to the Registrant's 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 Registrants 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 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 (attached to this Registration
Statement as Exhibit 5.1) *
EXHIBIT 24 - POWER OF ATTORNEY
Not applicable
EXHIBIT 99 - ADDITIONAL EXHIBITS
99.1 Center Banks Incorporated Employee Stock Purchase Plan.*
- --------
* Exhibit filed with this Registration Statement.
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<PAGE> 10
ITEM 9. 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, controlling persons of
the Registrant pursuant to the provisions described under Item 6 above, 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 Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudications 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 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 January 14, 1997.
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 January 14, 1997
- --------------------------------------------- Directors, President and
John P. Driscoll Chief Executive Officer
(Principal Executive Officer)
/s/ J. Daniel Mohr Chief Financial Officer and January 14, 1997
- --------------------------------------------- Treasurer (Principal Financial
J. Daniel Mohr Officer and Principal
Accounting Officer)
Director
- ---------------------------------------------
Clifford C. Abrams
Director
- ---------------------------------------------
Israel Berkman
/s/ David E. Blackwell Director January 14, 1997
- ---------------------------------------------
David E. Blackwell
Director
- ---------------------------------------------
Walter D. Copeland
/s/ Carl W. Gerst Director January 14, 1997
- ---------------------------------------------
Carl W. Gerst
</TABLE>
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<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ John Bernard Henry Director January 14, 1997
- ---------------------------------------------
John Bernard Henry
/s/ Ann G. Higbee Director January 14, 1997
- ---------------------------------------------
Ann G. Higbee
Director
- ---------------------------------------------
Bruce H. Leslie
/s/ Howard J. Miller Director January 14, 1997
- ---------------------------------------------
Howard J. Miller
/s/ Raymond C. Traver, Jr., M. D. Director January 14, 1997
- ---------------------------------------------
Raymond C. Traver, Jr., M.D.
Director
- ---------------------------------------------
Anne E. O'Connor
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
OPINION OF HARTER, SECREST & EMERY
<PAGE> 2
[Letterhead of Harter, Secrest & Emery]
January 27, 1997
Center Banks Incorporated
33 East Genesee Street
Skaneateles, New York 13152
Re: Center Banks Incorporated
Registration Statement on Form S-8
Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed under the Securities Act of 1933, as amended (the
"Registration Statement"), with the Securities and Exchange Commission in
respect of the proposed issuance by Center Banks Incorporated (the "Company") of
up to 50,000 shares of common stock, par value $.01 per share, of the Company
pursuant to the Company's Employee Stock Purchase Plan.
We have examined the following corporate records and proceedings of the
Company in connection with the preparation of this opinion: its Certificate of
Incorporation as amended and restated to date; its By-laws as currently in force
and effect; its minute books, containing minutes and records of other
proceedings of its stockholders and its Board of Directors from January 1, 1994,
to the date hereof; the Registration Statement and the related exhibits thereto;
applicable provisions of laws of the State of Delaware; and such other documents
and matters as we have deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Company, certificates and documents issued by
public officials and authorities, and information received from searches of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Company is validly existing under the laws of the State of
Delaware as of January 23, 1997.
2. The Company has the authority to issue an aggregate of 50,000 shares
of Common Stock upon the effectiveness of the Registration Statement.
3. The shares of Common Stock to be sold by the Company upon the
effectiveness of the Registration Statement will, when sold and paid for as
described in the Registration
<PAGE> 3
Center Banks Incorporated
January 27, 1997
Page 2
Statement, be validly authorized, legally issued and outstanding, and fully paid
and non-assessable.
We hereby consent to being named in the Registration Statement as
attorneys who will, for the Company, pass upon the validity of the issuance of
shares of Common Stock offered thereby, and we hereby consent to the filing of
this opinion as an Exhibit to the Registration Statement.
Very truly yours,
Harter, Secrest & Emery
<PAGE> 1
EXHIBIT 23.1
CONSENTS OF KPMG PEAT MARWICK LLP
<PAGE> 2
[Letterhead of KPMG Peat Marwick LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Center Banks Incorporated
We consent to incorporation by reference in the Registration Statement on Form
S-8 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.
KPMG Peat Marwick LLP
Syracuse, New York
January 17, 1997
<PAGE> 3
[Letterhead of KPMG Peat Marwick LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Center Banks Incorporated
We consent to incorporation by reference in the Registration Statement on Form
S-8 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 Cicero Bank has not fully
satisfied two of thirteen provisions of Cicero Bank's April 1993 Memorandum of
Understanding from the Federal Deposit Insurance Corporation and the State of
New York Banking Department.
KPMG Peat Marwick LLP
Syracuse, New York
January 17, 1997
<PAGE> 1
EXHIBIT 99.1
CENTER BANKS INCORPORATED EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
CENTER BANKS INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
JANUARY 14, 1997
1. PARTICIPATION; ADMINISTRATION. The Center Banks Incorporated Employee
Stock Purchase Plan (the "Plan") is available to employees of Center Banks
Incorporated (the "Company") and its subsidiary, Skaneateles Savings Bank (the
"Bank"), each located at 33 East Genesee Street, Skaneateles, New York
13152-0460. The Plan covers up to 50,000 shares of the authorized and unissued
common stock, par value $.01 per share (the "Common Stock"), of the Company. The
Plan will be administered by the Personnel and Compensation Committee of the
Board of Directors of the Company (the "Committee") consisting of not less than
two members who shall be appointed by, and shall serve at the pleasure of, the
Board of Directors of the Company.
2. OFFERINGS; ELIGIBILITY. After the Plan becomes effective, one or more
"Offerings," as determined by the Committee, may be made to eligible employees
(as defined herein) to purchase shares of Common Stock subject to the Plan. The
Offerings may be consecutive or concurrent, as determined by the Committee. With
respect to each Offering, the Committee shall specify an "Offering Period" and
the maximum number of shares of Common Stock that may be purchased under that
Offering. Generally, an Offering Period shall be three (3) months, but no
Offering Period may exceed six (6) months. Common Stock not sold under one
Offering may be offered again in any other Offering. The Committee shall specify
the "Effective Date" of each Offering under the Plan. Subject to Section 3, all
eligible employees shall be granted the same rights and privileges under each
Offering. Any employee may participate in the Plan who, on the Effective Date of
an Offering under the Plan: (i) has been an employee for a period of one (1)
year; and (ii) is customarily employed for more than twenty (20) hours per week
and for more than five (5) months per year; provided, that the employee does not
own stock possessing five percent (5%) or more of the combined voting power or
value of all classes of stock of the Company, as defined by Section 423(b)(3) of
the Internal Revenue Code (the "Code").
3. PARTICIPATION IN OFFERINGS. Except as may be otherwise provided for
herein, each employee who is eligible for and elects to participate in an
Offering shall be granted a subscription right, as of the Effective Date of that
Offering, for as many full shares of Common Stock as such employee may elect to
purchase during the Offering Period applicable to that Offering, to be paid by
payroll deductions during such period; provided, however, that the minimum
deduction of an employee shall be Five Dollars ($5.00) per week or Ten Dollars
($10.00) every two weeks, depending on the employee's pay cycle, and the maximum
deduction shall not exceed ten percent (10%) of an employee's gross weekly (or
bi-weekly) pay, excluding overtime, bonuses or special pay. In no event shall
any employee be granted a subscription right under the Plan: (i) which would
permit such employee to purchase Common Stock under the Plan in any calendar
year with a fair market value (determined as of the date such right is granted)
of Twenty-Five Thousand Dollars ($25,000.00) or more (subject to the further
limitations set forth in Section 423(b)(8) of the Code); or (ii) if, immediately
after such right is granted, such employee would own, or hold outstanding
options or rights to purchase, stock of the Company or of any subsidiary of the
Company possessing five percent (5%) or more of the total combined voting power
or value of all classes of stock of the Company. Subscription rights shall be
valid for the time period set forth by the Committee. In order to participate in
an Offering, an eligible employee must complete and forward a Payroll Deduction
Authorization form to the designated payroll location on or before the date
specified by the Committee for that particular Offering. This form will
authorize a regular payroll deduction from
<PAGE> 3
that employee's compensation beginning on the date specified by the Committee
for that particular Offering and continuing for the duration of the Offering
Period applicable to that Offering. Payroll deductions may not be retroactive.
4. PAYROLL DEDUCTIONS. The Company or the Bank will maintain a separate
payroll deduction account for each employee participating in an Offering. With
respect to each Offering under the Plan, an eligible employee may authorize a
payroll deduction of not less than Five Dollars ($5.00) per week or Ten Dollars
($10.00) every two weeks, depending on the employee's pay cycle, and not more
than ten percent (10%) of the eligible employee's gross weekly (or bi-weekly)
pay, excluding overtime, bonuses or special pay. Participating employees may not
change the amount of their payroll deductions during an Offering Period with
respect to that Offering. The payroll deduction accounts of participating
employees shall not bear interest.
5. PURCHASE PRICE. The purchase price for a share of Common Stock under
each Offering shall be the ninety-five percent (95%) of the Market Price as
determined in the Pricing Period, computed to three decimal places. "Market
Price" means the simple average of the daily high and low sale prices, computed
to three decimal places, at which the Common Stock is traded, as quoted on the
National Association of Securities Dealers Automated Quotation National Market
System ("NASDAQ/NMS") during a Pricing Period. A "Trading Day" means a day on
which (i) NASDAQ/NMS is open for the trading of securities, and (ii) the Common
Stock is actually traded. The period encompassing the five (5) last Trading Days
of any Offering Period constitutes the relevant "Pricing Period."
6. TIMING OF PURCHASES. As of the last day of each Offering Period, each
employee participating in the Offering to which that Offering Period is
applicable shall be deemed to have exercised his or her subscription right to
purchase shares of Common Stock. The payroll deduction account of each employee
who exercises a subscription right shall be charged for the amount of such
purchase and shares of Common Stock shall be issued to the employee's account
with the Custodian in accordance with Section 7. Any balance remaining in the
payroll deduction account of an employee at the end of an Offering Period shall
be carried forward into the next Offering Period. If there is no further
Offering Period, such balance shall be refunded to the employee.
7. INVESTMENT ACCOUNT; ACCOUNT STATEMENTS. The Board of Directors, in
its sole discretion, may from time to time appoint a custodian to hold the
Common Stock purchased under the Plan (the "Custodian"). Registrar and Transfer
Company has been appointed by the Board of Directors as the initial Custodian.
The Custodian shall maintain a separate account (each an "Account") for each
employee who participates in an Offering. Accounts shall be in the name of the
employee or, if so indicated on such employee's Payroll Deduction Authorization
form, in such employee's name jointly with one other person, with right of
survivorship. Following each purchase of Common Stock on behalf of an employee,
the Custodian will mail an Account statement to each employee participating in
the Offering showing the number of shares of Common Stock purchased, the price
per share of Common Stock and such employee's total number of shares of Common
Stock accumulated under the Plan. An employee shall have the right at any time
to obtain a certificate for the shares of Common Stock credited to such
employee's Account, or to direct that any shares in such employee's Account be
sold and the proceeds be remitted to such employee. When an employee ceases to
be eligible to participate in the Plan, a certificate for the shares of Common
Stock credited to such employee's Account shall be forwarded to such employee,
unless such employee elects to have such shares of Common Stock sold by the
Custodian and the proceeds remitted to such employee. In such case, the employee
must pay for brokerage commissions incurred by the Company in connection with
the Custodian's sale of such employee's Common Stock.
<PAGE> 4
8. EXPENSES. There will be no expenses to employees for the
administration of the Plan. Brokerage commissions and administrative fees
associated with the Plan will be paid by the Company, except as provided in
Section 7 in connection with the Custodian's sale of an employee's Common Stock.
9. STOCK CERTIFICATES. No Common Stock share certificates will be issued
to an employee unless the employee so requests or until the employee's Account
is terminated. No certificates for fractional shares of Common Stock will be
issued.
10. TERMINATION OF PARTICIPATION. Any employee may at any time and for
any reason terminate participation in an Offering and permanently draw out the
balance in his or her payroll deduction account which has not been applied
toward the exercise of such employee's subscription right, and thereby withdraw
from participation in the Offering under which such right was granted. Such
employee may not thereafter participate in that Offering but shall, if such
employee is otherwise eligible, be permitted to participate in any other
Offering under the Plan. Partial withdrawals shall not be permitted.
11. RETIREMENT, DEATH OR TERMINATION OF EMPLOYMENT. In the event an
employee participating in an Offering retires or dies prior to the last day of
the Offering Period applicable to that Offering, no further payroll deductions
shall be taken from any compensation due and owing to such employee at such
time. If such termination of employment occurs within three months of the last
day of the Offering Period, such employee, or, in the event of such employee's
death, the person or persons to whom such employee's subscription right passes
by will or by the laws of descent and distribution (including such employee's
estate during the period of administration), may request in writing prior to the
last day of such Offering Period that such amounts be applied as of the last day
of such Offering Period in the manner set forth in Section 5, as if the
retirement or death of such employee had not occurred. If no such election to
purchase shares pursuant to the Offering is made, the employee's accumulated
payroll deductions will be refunded in cash, without interest. If an employee
dies or retires before three months prior to the last day of the Offering
Period, all future participation in the Offering shall cease and all accumulated
payroll deductions in such employee's account shall be refunded. If the
employment of an employee participating in an Offering is terminated for any
reason other than retirement or death, such employee shall be entitled only to a
refund of the amount in his payroll deduction account, without interest, and
shall have no further rights under the Plan.
12. NONTRANSFERABILITY OF RIGHTS. Subscription rights granted to an
employee under this Plan are not transferable by such employee other than by
will or the laws of descent and distribution and are exercisable during the
lifetime of the employee only by such employee.
13. PROPORTIONATE DISTRIBUTION. If the employees participating in an
Offering subscribe for more than the total number of shares of the Common Stock
specified by the Committee for that Offering, the amount of such shares of
Common Stock subject to each such subscription shall be proportionately reduced
to such whole number of shares of Common Stock as may be determined by the
Committee, so that the aggregate of such shares of Common Stock subject to all
such subscriptions does not exceed the specified number of shares of Common
Stock for that Offering.
14. DURATION; TERMINATION OF PLAN. The Plan shall terminate upon the
earlier of: (i) the purchase by employees of all the shares of Common Stock
subject to the Plan; or (ii) the termination of the Plan by the Board of
Directors of the Company, in its sole discretion. No termination shall affect
subscription rights previously granted under the Plan. Upon termination of the
Plan for any
<PAGE> 5
reason, and the exercise or lapse of all subscription rights previously granted
under the Plan, all amounts remaining in the payroll deduction accounts of
participating employees shall be refunded, without interest.
15. STOCK DIVIDENDS; STOCK SPLITS; RIGHTS. Notwithstanding any other
provision of this Plan, in the event of any change in the outstanding Common
Stock, by reason of a dividend payable in Common Stock, recapitalization,
merger, consolidation, split-up, combination or exchange of shares, or the like,
appropriate adjustments shall be made to the aggregate number of Common Stock
subject to the Plan, the number of shares of Common Stock subject to outstanding
subscription rights, the purchase price per share of Common Stock (in the case
of shares of Common Stock subject to outstanding subscription rights), and the
number of shares of Common Stock which may be subscribed to by any one employee,
and such other adjustments deemed equitable by the Committee.
16. NO RIGHT OF CONTINUED EMPLOYMENT. Neither the action of the Company
in establishing the Plan, nor any action taken under the Plan by the Board of
Directors or the Committee, nor any provision of the Plan itself, is intended or
shall be construed so as to grant any person the right to remain in the employ
of the Company or the Bank for any period or specific duration, and such
person's employment may be terminated at any time, with or without cause (unless
such employee's employment is governed by a separate employment agreement with
the Company or the Bank, in which case the terms of such agreement shall
govern).
17. AMENDMENT OF PLAN. The Board of Directors may amend, supplement or
terminate the Plan at any time; provided, however, that, with respect to changes
or additions in order to make the Plan comply with Section 423 of the Code, the
Board may not make any changes or additions which would adversely affect
subscription rights previously granted under the Plan and may not, without the
approval of the stockholders of the Company, make any changes or additions which
would: (i) increase the aggregate number of shares of Common Stock subject to
the Plan or which may be subscribed to by an employee; (ii) decrease the minimum
purchase price for a share of Common Stock; or (iii) change any of the
provisions of the Plan relating to eligibility for participation in Offerings.
Additionally, subject to express provisions of the Plan and to such
instructions and limitations as the Board of Directors may establish from time
to time, the Committee shall have the authority to amend, supplement or
terminate rules and regulations relating to the Plan. The Committee may
interpret the Plan and may correct any defect or supply any omission or
reconcile any inconsistency in the Plan to the extent necessary for the
effective operation of the Plan. Any action taken by the Committee on the
matters referred to in this Section shall be conclusive.
18. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of New York, Federal securities laws, the
Rules and Regulations of the Securities and Exchange Commission, the rules and
regulations of all other regulatory agencies and federal law. The Plan cannot be
changed orally.
19. EFFECTIVENESS. The Plan will become effective on or after January
21, 1997 as determined by the Board of Directors. It is the intention of the
Company to have the Plan qualify as an "employee stock purchase plan" under
Section 423 of the Code, and the Plan is to be construed accordingly. The Plan
may be terminated in the future if a sufficient number of employees are not
participating in the Plan.
<PAGE> 6
In Witness Whereof, the Company has caused this Employee Stock Purchase
Plan to be executed this 14th day of January, 1997.
CENTER BANKS INCORPORATED
By: /s/ John P. Driscoll
------------------------------------
John P. Driscoll
Chairman of the Board of Directors,
President and Chief Executive Officer
