Registration No. 333-______
As filed with the Securities and Exchange Commission on June 20, 2001
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Finger Lakes Bancorp, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 16-1594819
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
470 Exchange Street
Geneva, New York 14456-0353
(Address of Principal Executive Offices)
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Finger Lakes Bancorp, Inc. 2001 Stock Option Plan
Finger Lakes Bancorp, Inc. 2001 Recognition and Retention Plan
(Full Title of the Plans)
Copies to:
G. Thomas Bowers, President
and Chief Executive Officer John J. Gorman, Esquire
Finger Lakes Bancorp, Inc. Luse Lehman Gorman Pomerenk & Schick, P.C.
470 Exchange Street 5335 Wisconsin Ave., N.W., Suite 400
Geneva, New York 14456-0353 Washington, D.C. 20015
(315) 789-3838 (202) 274-2000
(Name, Address and Telephone
Number of Agent for Service)
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. |X|
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered (1) Maximum Maximum Registration Fee
Offering Price Per Aggregate Offering
Share Price
Common Stock,
par value $.01 213,750 shares (2) $9.30 (3) $1,987,875 $497
per share
Common Stock,
par value $.01 16,982 shares (4) $9.995 (6) $169,735 $42
per share
Common Stock,
par value $.01 92,293 shares (5) $9.995 (6) $922,468 $231
per share
Total 323,025 shares $3,080,079 $770
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Finger Lakes Bancorp, Inc. 2001 Stock Option Plan (the "Stock Option
Plan"), and the Finger Lakes Bancorp, Inc. 2001 Recognition and Retention
Plan (the "Recognition and Retention Plan") as the result of a stock split,
stock dividend or similar adjustment of the outstanding Common Stock of
Finger Lakes Bancorp, Inc. pursuant to 17 C.F.R. ss. 230.416(a).
(2) Represents the number of shares currently reserved for issuance pursuant to
options granted pursuant to the Stock Option Plan.
(3) Determined by the exercise price of options pursuant to 17 C.F.R.ss.230.457
(h)(1).
(4) Represents the number of shares currently reserved for issuance pursuant to
options available for grant pursuant to the Stock Option Plan.
(5) Represents the maximum number of shares which can be granted pursuant to
the Recognition and Retention Plan.
(6) Determined by reference to the fair market value of the common stock on
June 18, 2001, pursuant to 17 C.F.R.ss.230.457(c).
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This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee
Plan Annual Information
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants in the Stock Option Plan and
the Recognition and Retention Plan (collectively, the "Plans") as specified by
Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Finger Lakes
Bancorp, Inc. (the "Company") with the Commission are hereby incorporated by
reference in this Registration Statement:
a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 (Commission File No. 000-31821), filed pursuant to Rule 13a-1
of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
b) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the year covered by the Annual Report
referred to above;
c) The description of the common stock of the Company contained in the
Registration Statement on Form S-1 (Commission File No. 333-33418) originally
filed by the Company under the Securities Act of 1933 with the Commission on
March 28, 2000, and all amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the prospectus.
The Company shall furnish without charge to each person to whom the
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to G.
Thomas Bowers, President and Chief Executive Officer, Finger Lakes Bancorp,
Inc., 470 Exchange Street, Geneva, New York 14456-0353, telephone number (315)
789-3838.
All information appearing in this Registration Statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
3
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Article TENTH of the Certificate of Incorporation of Finger Lakes Bancorp,
Inc. (the "Corporation") sets forth circumstances under which directors,
officers, employees and agents of the Corporation may be insured or indemnified
against liability which they incur in their capacities as such:
TENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a Director or Officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
4
(i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article TENTH or otherwise shall be on the
Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or Exhibit No.
Exhibit Number Document Attached Hereto
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5 Opinion of Luse Lehman Gorman Pomerenk Attached as Exhibit 5
& Schick, P.C.
10.1 Finger Lakes Bancorp, Inc. 2001 Stock Option Plan. **
10.2 Finger Lakes Bancorp, Inc. 2001 Recognition and **
Retention Plan.
23.1 Consent of Luse Lehman Gorman Pomerenk
& Schick, P.C. Contained in Exhibit 5
23.2 Consent of KPMG LLP. Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
** Filed as exhibits to the Registrant's Proxy Statement relating to the
Registrant's May 15, 2001 annual meeting of stockholders, filed with the
Commission on April 11, 2001, which is incorporated herein by reference.
5
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan 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 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;
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
Stock Option Plan and the Recognition and Retention Plan; and
4. 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 that is incorporated by
reference in this 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.
5. 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 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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EXHIBIT INDEX
Exhibit Number Description
5 Opinion of Luse Lehman Gorman Pomerenk & Schick, A
Professional Corporation as to the legality of the
Common Stock registered hereby.
23.1 Consent of Luse Lehman Gorman Pomerenk & Schick, A
Professional Corporation (contained in the opinion
included as Exhibit 5).
23.2 Consent of KPMG LLP.
7
SIGNATURES
The Registrant. 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 the City of Geneva, New York, on this 19th day of
June, 2001.
FINGER LAKES BANCORP, INC.
By: /s/ G. Thomas Bowers
--------------------------
G. Thomas Bowers, President
and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Finger Lakes Bancorp, Inc.
(the "Company") hereby severally constitute and appoint G. Thomas Bowers as our
true and lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which said G. Thomas Bowers may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration statement on Form S- 8,
including specifically, but not limited to, power and authority to sign for us
in our names in the capacities indicated below the registration statement and
any and all amendments (including post-effective amendments) thereto; and we
hereby approve, ratify and confirm all that said G. Thomas Bowers shall do or
cause to be done by virtue thereof.
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 date indicated.
Signatures Title Date
/s/ G. Thomas Bowers President, Chief June 19, 2001
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G. Thomas Bowers Executive Officer
and Chairman
(Principal Executive
Officer)
/s/ Terry L. Hammond Chief Financial Officer June 19, 2001
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Terry L. Hammond (Principal Financial
and Accounting Officer)
/s/ Michael J. Hanna Director June 19, 2001
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Michael J. Hanna
/s/ Chris M. Hansen
Chris M. Hansen Director June 19, 2001
/s/ James E. Hunter Director June 19, 2001
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James E. Hunter
/s/ Ronald C. Long Director June 19, 2001
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Ronald C. Long
/s/ Bernard G. Lynch Director June 19, 2001
- ---------------------
Bernard G. Lynch
/s/ Arthur W. Pearce Director June 19, 2001
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Arthur W. Pearce
/s/ Joan C. Rogers Director June 19, 2001
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Joan C. Rogers
EXHIBIT 5
OPINION OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.
June 20, 2001 (202) 274-2000
Board of Directors
Finger Lakes Bancorp, Inc.
470 Exchange Street
Geneva, New York 14456-0353
Re: Finger Lakes Bancorp, Inc. 2001 Stock Option Plan
and Finger Lakes Bancorp, Inc. 2001 Recognition and Retention Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the issuance of Finger Lakes Bancorp, Inc. (the "Company")
common stock, par value $.01 per share (the "Common Stock"), pursuant to the
Finger Lakes Bancorp, Inc. 2001 Stock Option Plan (the "Stock Option Plan") and
the Finger Lakes Bancorp, Inc. 2001 Recognition and Retention Plan. We have
reviewed the Company's Certificate of Incorporation, Registration Statement on
Form S-8 (the "Form S-8"), as well as applicable statutes and regulations
governing the Company and the offer and sale of the Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when issued in
connection with the exercise of options granted pursuant to the Stock Option
Plan, will be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/LUSE LEHMAN GORMAN POMERENK & SCHICK
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LUSE LEHMAN GORMAN POMERENK & SCHICK
A Professional Corporation
EXHIBIT 23.2
CONSENT OF KPMG LLP
Independent Auditors' Consent
Board of Directors
Finger Lakes Bancorp, Inc.:
We consent to the incorporation by reference in this Registration statement
on Form S-8 of Finger Lakes Bancorp, Inc. for the Finger Lakes Bancorp, Inc.
2001 Stock Option Plan and 2001 Recognition and Retention Plan of our report
dated January 26, 2001, relating to the consolidated statements of financial
condition of Finger Lakes Bancorp, Inc. and subsidiaries as of December 31, 2000
and 1999, 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, 2000, which report appears in the December 31, 2000 annual report
on Form 10-K of Finger Lakes Bancorp, Inc. filed with the Securities and
Exchange Commission.
/s/ KPMG LLP
Syracuse, New York
June 19, 2001