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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1998
REGISTRATION NO. 333-__________
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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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Cortland Bancorp
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(Exact name of registrant as specified in its charter)
Ohio 34-1451118
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
194 West Main Street, Cortland, Ohio 44410
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(Address of Principal Executive Offices)(Zip Code)
The Cortland Savings And Banking Company 401(k) Plan
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(Full title of the plan)
Copy to:
Dennis E. Linville Michael D. Martz, Esq.
Cortland Bancorp Vorys, Sater, Seymour and
194 West Main Street Pease LLP
Cortland, Ohio 44410 52 East Gay Street
(Name and address of agent for service) Columbus, Ohio 43512
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(330) 637-8040
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(Telephone number, including area code, of agent for service)
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Calculation of Registration Fee
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Proposed maximum
Title of securities Proposed maximum aggregate offering Amount of
to be registered Amount to be offering price price (1) registration fee
registered per unit (1)
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Common Shares, 250,000 $62.00 $15,500,000.00 $4,573.00
Without Par Value
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(1) Pursuant to Rule 457(c), the proposed maximum aggregate offering price
is based on the average per share of the high and low prices of the
Common Shares reported on the Over-the-Counter Bulletin Board on May
11, 1998. (within five business days of filing)
In addition, pursuant to Rule 416 (C) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
Page 0 of 123 pages.
Index to Exhibits at Page 16
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Cortland Bancorp (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein: (i) The Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, (ii) the Annual Report on Form 11-K for the
Cortland Savings and Banking Company 401(k) Plan for the fiscal year ended
December 31, 1996, (iii) the Corporation's Quarterly Report on Form 10-Q filed
with the Commission for the quarter ended March 31, 1998; (iv) all other reports
filed with the Commission pursuant to the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since that date and (v) the description of the Registrant's Common
Shares contained in Registrant's Registration Statement filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, including any and all amendments or reports filed for the purpose of
updating such description.
Any definitive Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act, and all documents which may be filed
with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act
subsequent to the date hereof and prior to the completion of the offering
contemplated hereby, shall also be deemed to be incorporated herein by reference
and to be made a part hereof from the date of filing of such documents;
provided, however, that no report of the Board of Directors of the Registrant on
executive compensation and no performance graph included in any Proxy Statement
or Information Statement filed pursuant to Section 14 of the Exchange Act shall
be deemed to be incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
NOT APPLICABLE.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the Common Shares of the
Registrant being registered on this Registration Statement on Form S-8 will be
passed upon for the Registrant by Vorys, Sater, Seymour and Pease LLP, 52 East
Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008. Members of Vorys, Sater,
Seymour and Pease LLP and attorneys employed thereby, together with members of
their immediate families, beneficially own less than $50,000 worth of the Common
Shares of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Division (E) of Section 1701.13 of the Ohio Revised Code
governs indemnification by an Ohio corporation and provides as follows:
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(E)(1) A corporation may indemnify or agree to 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,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding 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, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or 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 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, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to 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, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's 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, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that the court of common pleas or the court
in which such action or suit was brought determines, upon
application, that, despite the adjudication of liability, but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
as the court of common pleas or such other court shall deem
proper;
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(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, 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, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened with the action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in
which the action, suit, or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and within ten days
after receipt of such notification, such person shall have the right to
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petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not apply to the corporation and
unless the only liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the
action, suit or proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action, suit, or
proceeding upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, as authorized by the directors in the specific case,
upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-
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insurance, on behalf of or for any person who is or was a director,
officer, employee, or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
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 to indemnify him against such
liability under this section. Insurance may be purchased from or
maintained with a person in which the corporation has a financial
interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions
(E)(5),(6), and (7) of this section. Divisions (E)(1) and (2) of this
section do not create any obligation to repay or return payments made
by the corporation pursuant to division (E)(5),(6) or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
Article FIVE of the Code of Regulations of the Registrant
governs indemnification by the Registrant and provides as follows:
5.01. MANDATORY INDEMNIFICATION. The corporation shall indemnify any
officer or director of the Corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action threatened or
instituted by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, against expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees
and transcript costs), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not
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opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. A person claiming indemnification
under this Section 5.01 shall be presumed, in respect of any act or
omission giving rise to such claim for indemnification, 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 and, with respect to
any criminal matter, to have had no reasonable cause to believe his
conduct was unlawful, and the termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, rebut such
presumption.
5.02. COURT-APPROVED INDEMNIFICATION. Anything
contained in the regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify any
officer or director of the corporation who was a party to any completed
action or suit instituted 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, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable for
acting with reckless disregard for the best interests of the
corporation or misconduct (other than negligence) in the performance of
his duty to the corporation unless and only to the extent that the
Court of Common Pleas of Trumbull County, Ohio or the court in which
such action or suit was brought shall determine upon application that,
despite such adjudication of liability, and, in view of all the
circumstances of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court shall deem
proper; and
(B) the corporation shall promptly make any
such unpaid indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
5.03. INDEMNIFICATION FOR EXPENSES. Anything
contained in the regulations or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of the
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 5.01, or in
defense of any claim, issue or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) actually and reasonably incurred by him in connection
therewith.
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5.04. DETERMINATION REQUIRED. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall
be made by the corporation only upon a determination that such
indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Section 5.01. Such determination may be made only (A) by a
majority vote of a quorum consisting of directors of the corporation
who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable
or if a majority of a quorum of disinterested directors so directs, in
a written opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been retained
by or who has performed services for the corporation, or any person to
be indemnified, within the past five years, or (C) by the shareholders,
or (D) by the Court of Common Pleas of Trumbull County, Ohio or (if the
corporation is a party thereto) the court in which such action, suit or
proceeding was brought, if any. Any such determination may be made by a
court under division (D) of this Section 5.04 at any time [including,
without limitation, any time before, during or after the time when any
such determination may be requested of, be under consideration by or
have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by
the shareholders under division (C) of this Section 5.04]. No failure
for any reason to make any such determination, and no decision for any
reason to deny any such determination, by the disinterested directors
under division (A) or by independent legal counsel under division (B)
or by shareholders under division (C) of this Section 5.04 shall be
evidence in rebuttal of the presumption recited in Section 5.01. Any
determination made by the disinterested directors under division (A) or
by independent legal counsel under division (B) of this Section 5.04 to
make indemnification in respect of any claim, issue or matter asserted
in an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who threatened
or brought such action or suit. Within ten (10) days after receipt of
such notification, such person shall have the right to petition the
Court of Common Pleas of Trumbull County, Ohio or the court in which
such action or suit was brought, if any, to review the reasonableness
of such determination.
5.05. ADVANCES FOR EXPENSES. Expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees
and transcript costs) incurred in defending any action, suit or
proceeding referred to in Section 5.01 shall be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
to or on behalf of the officer or director promptly as such expenses
are incurred by him, but only if such officer or director shall first
agree, in writing, to repay all amounts so paid in respect of any
claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the
merits or otherwise:
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(A) if it shall ultimately be determined as
provided in Section 5.04 that he is not entitled to be indemnified by
the corporation as provided under Section 5.01; or
(B) if, in respect of any claim, issue or
other matter asserted by or in the right of the corporation in such
action or suit, he shall have been adjudged to be liable for acting
with reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty to
the corporation, unless and only to the extent that the Court of Common
Pleas of Trumbull County, Ohio or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
5.06. ARTICLE FIVE NOT EXCLUSIVE. The indemnification
provided by this Article Five shall not be exclusive of, and shall be
in addition to, any other rights to which any person seeking
indemnification may be entitled under the articles or the regulations
or any agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to
a person who has ceased to be an officer or director of the corporation
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
5.07. INSURANCE. The corporation may purchase and
maintain insurance or furnish similar protection, including but not
limited to trust funds, letters of credit, or self- insurance, on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any capacity, or
arising out of his status as such, whether or not the corporation would
have the obligation or the power to indemnify him against such
liability under the provisions of this Article Five. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
5.08. CERTAIN DEFINITIONS. For purposes of this
Article Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under
this Article 5 shall be deemed to have been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Section 5.01, or in defense of any claim, issue or other matter
therein, if such action, suit or proceeding shall be terminated as to
such person, with or without prejudice, without the entry of a
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judgment or order against him, without a conviction of him, without the
imposition of a fine upon him and without his payment or agreement to
pay any amount in settlement thereof (whether or not any such
termination is based upon a judicial or other determination of the lack
of merit of the claims made against him or otherwise results in a
vindication of him); and
(B) References to an "other enterprise"
shall include employee benefit plans; references to a "fine" shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries. A person
who acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" within the meaning of that term
as used in this Article Five.
5.09. VENUE. Any action, suit or proceeding to
determine a claim for indemnification under this Article Five may be
maintained by the person claiming such indemnification, or by the
corporation, in the Court of Common Pleas of Trumbull County, Ohio. The
corporation and (by claiming such indemnification) each such person
consent to the exercise of jurisdiction over its or his person by the
Court of Common Pleas of Trumbull County, Ohio in any such action, suit
or proceeding.
b. Ohio Revised Code Section 1701.13(E) provides as
follows:
(1) A corporation may indemnify or agree to 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,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, partnership,
joint venture, trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit, or proceeding 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 by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption
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that the person did not act 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, he
had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to 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, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's 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,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which
such person is adjusted to be liable for negligence or misconduct in
the performance of his duty to the corporation unless, and only to the
extent that the court of common pleas or the court in which such action
or suit was brought determines upon application that, despite the
adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper;
(b) Any action or suit in which the only
liability asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise in
defense of any action, suit, or proceedings referred to in divisions
(E)(1) and (2) of this section, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit or proceeding.
(4) Any indemnification under divisions (E)(1) and
(2) of this section, 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, trustee, officer,
employee, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in divisions (E)(1) and
(2) of this section. Such determination shall be made as follows:
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(a) By a majority vote of a quorum
consisting of directors of the indemnifying corporation who were not
and are not parties to or threatened with any such action, suit or
proceeding;
(b) If the quorum described in division
(E)(4)(a) of this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be indemnified
within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the
court in which such action, suit, or proceeding was brought.
Any determination made by the disinterested directors
under division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or
omission that is the subject of an action, suit, or proceeding referred
to in divisions (E)(1) and (2) of this section, the articles or the
regulations of a corporation state by specific reference to this
division that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit or proceeding referred to in divisions (E)(1) and
(2) of this section is pursuant to section 1701.95 of the Revised Code,
expense, including attorney's fees, incurred by a director in defending
the action, suit or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is
proved by clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the
corporation concerning the action, suit or proceeding.
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(b) Expenses, including attorney's fees,
incurred by a director, trustee, officer, employee, or agent in
defending any action, suit or proceeding referred to in divisions
(E)(1) and (2) of this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding as authorized by the directors in the specific case upon
receipt of an undertaking by or on behalf of the director, trustee,
officer, employee, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the
corporation.
(6) The indemnification authorized by this section
shall not be exclusive of, and shall be in addition to, any other
rights granted to those seeking indemnification under the articles or
the regulations or any agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, trustee,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance
or furnish similar protection, including but not limited to trust
funds, letters of credit, or self-insurance, on behalf of or for any
person who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee or agent of another corporation,
domestic or foreign, nonprofit or for profit, 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
to indemnify him against such liability under this section. Insurance
may be purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of the corporation to indemnify
persons pursuant to divisions (E)(1) and (2) of this section does not
limit the payment of expenses as they are incurred, indemnification,
insurance, or other protection that may be provided pursuant to
divisions (E)(5), (6) and (7) of this section. Divisions (E)(1) and (2)
of this section do not create any obligation to repay or return
payments made by the corporation pursuant to divisions (E)(5), (6), or
(7).
(9) As used in this division, references to
"corporation" includes all constituent corporations in a consolidation
or merger and the new or surviving corporation, so that any person who
is or was a director, officer, employee, or agent of such a constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit,
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partnership, joint venture, trust, or other enterprise, shall stand in
the same position under this section with respect to the new or
surviving corporation as he would if he had served the new or surviving
corporation in the same capacity.
The Corporation has obtained liability insurance on behalf of
its directors and officers as authorized by Ohio Revised Code Section
1701.13(E)(7).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
NOT APPLICABLE.
ITEM 8. EXHIBITS.
See the Index to Exhibits attached hereto at page - 16.
ITEM 9. UNDERTAKINGS.
A. 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration
statement.
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(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 offering.
B. The undersigned Registrant hereby undertakes 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 Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. 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 provisions described in Item
6 of this Part II, 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.
D. The undersigned Registrant hereby undertakes to submit any amendment to
the Plan to the Internal Revenue Service in a timely manner and has
made or will make all changes required by the IRS in order to continue
to qualify the Plan under Section 401 of the Internal Revenue Code.
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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 the City of Cortland, State of Ohio, on the 15th day of May,
1998.
CORTLAND BANCORP
By: /s/ Rodger W. Platt
-------------------
Rodger W. Platt, Chairman of the Board and President
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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Rodger W. Platt Chairman of the Board, May 15,
- ------------------- President and Director 1998
Rodger W. Platt
Dennis E. Linville* Executive Vice President, *
Secretary and
Director
Lawrence A. Fantauzzi* Treasurer and Controller *
James M. Gasior* Chief Operations Officer *
P. Bennett Bowers* Director *
David C. Cole* Director *
George E. Gessner* Director *
William A. Hagood* Director *
James E. Hoffman, III* Director *
Richard L. Hoover* Director *
K. Ray Mahan* Director *
Timothy K. Woofter* Director *
*By /s/ Rodger W. Platt
-------------------
Rodger W. Platt,
Attorney-in-Fact
Date: May 15, 1998
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EXHIBIT INDEX
-------------
EXHIBIT
NUMBER EXHIBIT LOCATION
------ ------- --------
4(a) The Amended and Restated Articles of Cortland Bancorp, Incorporated herein by reference to Registrant's
as in effect on the date of filing Registration Statement on Form S-3 filed on
October 28, 1993 (Registration No. 33-70882
(Exhibit 4(a))
4(b) The Amended and Restated Regulations of Cortland Incorporated herein by reference to Registrant's
Bancorp, as in effect on the date of filing Registration Statement on Form S-3 filed on
October 28, 1993 (Registration No. 33-70882
(Exhibit 4(b))
5(a) Opinion of Vorys, Sater, Seymour and Pease LLP Pages 17 - 18*
5(b) Internal Revenue Service Determination letter that the Pages 19 - 20*
Plan is qualified under Section 401 of the Internal
Revenue Code
23 Consent of Packer, Thomas & Co. Page 21*
23(b) Consent of Vorys, Sater, Seymour and Pease LLP Contained in the firm's Opinion included herein
as Exhibit 5
24 Powers of Attorney Pages 22 - 32*
99(a) Summary Plan Description for The Cortland Savings & Pages 33 - 47*
Banking Company 401(k) Plan dated January 12, 1994
99(b) The Cortland Savings and Banking Company 401(k) Plan Pages 48 - 123*
dated January 12, 1994, and Amendments dated August 24,
1994, July 11, 1995, September 26, 1997 and December 23,
1997.
* As consecutively numbered