As filed with the Securities and Exchange Commission on ______ __, 2023
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________________________
FORM S‑8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_____________________________________________
ARROW FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
| | | | | | | | | | | | | | |
| | 250 Glen Street | | |
| | Glens Falls, New York 12801 | | |
| NEW YORK | | Telephone: (518) 745-100 | | 22-2448962 |
| (State or other jurisdiction of | | (Address of Principal Executive Offices) | | (I.R.S. Employer |
| incorporation or organization) | | | | Identification No.) |
ARROW FINANCIAL CORPORATION 2023 DIRECTORS’ STOCK PLAN
(Full title of the plan)
DAVID S. DEMARCO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ARROW FINANCIAL CORPORATION
250 GLEN STREET
GLENS FALLS, NEW YORK 12801
Telephone: (518) 415-4526
(Name, address and telephone numbers,
including area code, of agent for service)
Copy to:
Michele C. Kloeppel, ESQ.
Thompson Coburn LLP
One US Bank Plaza
St. Louis, Missouri 63101
Telephone: (314) 552-6170
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ☐ Accelerated filer ☑
Non-accelerated filer ☐ Smaller reporting company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
Arrow Financial Corporation (the “Registrant,” the “Company” or “Arrow”) hereby files this Registration Statement on Form S-8 to register seventy five thousand (75,000) shares of the Registrant’s Common Stock, $1.00 par value, for issuance to participants under the Arrow Financial Corporation 2023 Directors’ Stock Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the “Commission”) by the Registrant are incorporated herein by reference:
a.The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed July 18, 2023;
b.The Registrant’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2023, filed July 27, 2023, June 30, 2023, filed August 8, 2023 and September 30, 2023, filed November 9, 2023;
c.The Registrant’s Current Reports on Form 8-K (specifically excluding the information furnished under Items 2.02 and 7.01 and any exhibits furnished thereto), filed January 30, 2023, February 6, 2023, February 23, 2023, April 5, 2023, May 3, 2023, May 15, 2023, June 5, 2023, July 21, 2023, July 24, 2023, July 27, 2023, July 28, 2023, July 31, 2023, August 8, 2023, August 31, 2023 and December 4, 2023; and
d.The description of the Registrant’s common stock which is contained in the Registration Statement on Form 8-A filed by the Registrant under Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
We specifically note that the December 4, 2023 Form 8-K referenced above disclosed a two-part balance sheet repositioning strategy as follows:
"During the week of November 27, 2023, Arrow sold all 27,771 shares of Visa Class B common shares it previously held (the “Visa Sale”) for a pre-tax gain of approximately $9.3 million.
Concurrently, the Company also executed a balance sheet repositioning of its available-for-sale securities portfolio (the “Repositioning”). The Company sold approximately $100 million of lower-yielding securities, resulting in an approximate pre-tax loss of $9.2 million. The proceeds were reinvested in higher yielding available for sale securities and federal funds.
On an annualized basis, the positive spread differential of about 3% between the sold securities and the new investments is expected to generate approximately $3 million in pre-tax earnings.
The combined impact of the gain generated from the Visa Sale and the loss generated from the Repositioning is expected to have a positive impact on consolidated shareholders’ equity and book value per share equal to the after-tax impact of the gain realized on the Visa Sale.
Regulatory Risk-Based-Capital ratios will improve as the new investments carry a lower risk weighting than the securities that were sold. Non-risk-based capital ratios are not materially impacted by these transactions.
Arrow expects the above transactions to be accretive to earnings, net interest margin and return on assets in future periods."
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement 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 remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be made a part hereof from the date of filing of such documents. Any statements contained herein or in a document incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in a subsequently filed document incorporated herein by reference modifies or supersedes such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Where any document or part thereof is incorporated by reference in this Registration Statement, the Registrant will provide without charge to each person to whom a prospectus with respect to the Plan is delivered, upon written or oral request of such person, a copy of any and all of the information incorporated by reference in this Registration Statement, excluding exhibits unless such exhibits are specifically incorporated by reference.
Item 4. Description of Securities.
The class of securities to be offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 721-726 of the New York Business Corporation Law generally provide for or permit a corporation to indemnify the directors and officers against liabilities they may incur in such capacities provided certain standards are met, including good faith and the reasonable belief that the particular action was in, or not opposed to, the best interests of the corporation.
The Registrant’s Certificate of Incorporation provides that directors and officers of the Registrant shall be indemnified, to the fullest extent permitted by the Business Corporation Law, against judgments, fines, amounts paid in settlement and reasonable expenses (including attorneys’ fees) incurred by them in connection with actions to which they are, or are threatened to be made, parties. If a director or officer is not successful in the defense of an action, he or she is entitled to indemnification, under the Registrant’s Certificate of Incorporation and the relevant provisions of law, if ordered by a court or if the Board of Directors, acting by a majority vote of a quorum of disinterested directors or upon the written opinion of independent legal counsel, determines that the director or officer acted in good faith for a purpose which he or she reasonably believed to be in the best interests of the Registrant, and, in criminal actions, had no reasonable cause to believe his or her conduct was unlawful. In connection with actions by or in the right of the Registrant (derivative suits) as to which the director or officer is not successful, indemnification is permitted for expenses and amounts paid in settlement only if and to the extent that a court of competent jurisdiction deems proper, and indemnification for adverse judgments is not permitted.
Under the Registrant’s Certificate of Incorporation and applicable provisions of law, the Board of Directors or the Registrant may advance expenses to a director or officer before final disposition of an action or proceeding upon receipt of an undertaking by the director or officer to repay the amount advanced if he is ultimately found not to be entitled to indemnification with respect thereto.
The Registrant’s Certificate of Incorporation also provides that to the fullest extent permitted by law, subject only to the express prohibitions on limitation of liability set forth in Section 402(b) of the Business Corporation Law, a director of the Registrant shall not be liable to the Registrant or its shareholders for monetary damages for any breach of duty as a director.
Pursuant to policies of directors’ and officers’ liability insurance, the directors and officers of the Registrant and its subsidiary banks are insured, subject to the limits, exceptions and other terms and conditions of such policy, against liability for claims made against them for any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty while acting in their individual or collective capacities as directors or officers of such entities.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement.
EXHIBIT INDEX
| | | | | |
| Exhibit No. | |
| 3.1 | |
| 3.2 | |
| 4.1 | |
| 4.2 | |
| 4.3 | |
| 4.4 | |
| 4.5 | Amended and Restated Trust Agreement among the Registrant, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware trustee, and certain Administrators named therein, dated as of December 28, 2004, relating to Arrow Capital Statutory Trust III, incorporated herein by reference from the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004, Exhibit 4.6 |
| 4.6 | |
| 4.7 | |
| 4.8 | |
| 4.9 | |
| 5.1* | |
| 15 * | |
| 23.1 * | |
| 23.2 | |
| 24.1 | |
| 107 | |
*Filed herewith.
Item 9. Undertakings.
a.The undersigned registrant hereby undertakes:
1.To file, during any period in which offers and 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(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 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Glens Falls, State of New York, on December 7, 2023.
ARROW FINANCIAL CORPORATION
By: /s/ David S. DeMarco
David S. DeMarco,
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Arrow Financial Corporation, hereby severally and individually constitute and appoint David S. DeMarco and Penko K. Ivanov, and each of them, the true and lawful attorneys and agents of each of us to execute in the name, place and stead of each of us (individually and in any capacity stated below) any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and all instruments necessary or advisable in connection therewith and to file the same with the Securities and Exchange Commission, each of said attorneys and agents to have the power to act with or without the other and to have full power and authority to do and perform in the name and on behalf of each of the undersigned every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any of the undersigned might or could do in person, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys and agents and each of them to any and all such amendments and instruments.
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.
| | | | | | | | |
| Name | Title | Date |
/s/ David S. DeMarco David S. DeMarco | President, Chief Executive Officer and Director
(Principal Executive Officer) | December 7, 2023 |
/s/ Penko K. Ivano Penko K. Ivanov | Senior Executive Vice President, Chief Financial Officer, Treasurer and Chief Accounting Officer
(Principal Financial and Accounting Officer) | December 7, 2023 |
/s/ William L. Owens William L. Owens | Chairman and Director | December 7, 2023 |
/s/ Mark L. Behan Mark L. Behan | Director | December 7, 2023 |
/s/ Tenée R. Casaccio Tenée R. Casaccio | Director | December 7, 2023 |
/s/ Gregory J. Champion Gregory J. Champion | Director | December 7, 2023 |
/s/ Gary C. Dake Gary C. Dake | Director | December 7, 2023 |
/s/ David G. Kruczlnicki David G. Kruczlnicki | Director | December 7, 2023 |
/s/ Elizabeth A. Miller Elizabeth A. Miller | Director | December 7, 2023 |
/s/ Raymond F. O’Conor Raymond F. O’Conor | Director | December 7, 2023 |
/s/ Colin L. Read, Ph.D. Colin L. Read, Ph.D. | Director | December 7, 2023 |
Ex. 107 Security Type Security Class Title Fee Calculation Rule Amount Registered Propose d Maximu m Offering Price Per Unit Maximum Aggregate Offering Price Fee Rate Amount of Registration Fee $0.00014760 ($147.60/ Equity million dollars $ 292.25 (3) registered) $1,980,000.00 $ 292.25 $ 0.00 (4) $ 292.25 (4) See “Table 2: Fee Offset Claims and Sources” to this Exhibit 107 for information related to the fee offset. Registrant or Filer Name Form or Type of Filing File Number Initial Filing Date Filing Date Fee Offset Claimed Security Type Associated with Fee Offset Claimed Security Title Associat ed with Fee Offset Claimed Unsold Securitie s Associat ed with Fee Offset Claimed Unsold Aggregat e Offering Amount Associat ed with Fee Offset Claimed Fee Paid with Fee Offset Source Fee Offset Claims Fee Offset Sources Total Offering Amounts Total Fee Offsets Net Fee Due Rule 457(p) (3) Rounded up to the next highest cent. Table 1: Newly Registered (1) Pursuant to Rule 416(a), the amount to be registered also includes an indeterminate number of additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) promulgated under the Securities Act, using the average of the high and low prices as reported on as reported on the Nasdaq Global Select Market on December 4, 2023 rounded up to the next highest cent. Common stock, par value $1.00 per share 457(c) 75,000 (1) $26.40 (2) $1,980,000.00
Exhibit 5.1
December 7, 2023
Arrow Financial Corporation
250 Glen Street
Glens Falls, NY 12801
Re: Registration Statement on Form S-8 for seventy-five thousand (75,000) shares of Arrow Financial Corporation Common Stock, par value $1.00, for issuance to participants under the Arrow Financial Corporation 2023 Directors’ Stock Plan
Ladies and Gentlemen:
We have served as counsel to Arrow Financial Corporation, Glens Falls, New York (the “Company”), in connection with the preparation and filing of a registration statement (and included prospectus) on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder (the “Securities Act”), registering the offer and sale by the Company of up to seventy-five thousand (75,000) shares of common stock of the Company, par value $1.00 per share (the “Shares”), through the Arrow Financial Corporation 2023 Directors’ Stock Plan (the “Plan”).
We have examined such corporate records of the Company, such laws and such other information as we have deemed relevant, including the Company’s Certificate of Incorporation and all amendments thereto, By-laws and all amendments thereto and statements we have received from officers and representatives of the Company. In delivering this opinion, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents, and the correctness of statements submitted to us by officers and representatives of the Company. Except to the extent expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts and no inference as to our knowledge of the existence or absence of such facts should be drawn from our representation of the Company.
Based solely on the foregoing, we are of the opinion that the Shares to be issued by the Company have been duly authorized and, when issued and sold by the Company in accordance with the Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement.
Our opinions set forth above are limited to the Federal laws of the United States of America and the laws of the State of New York.
This opinion may only be used, quoted or relied upon for the purpose of complying with the Securities Act in connection with the filing of the Registration Statement and may not be furnished to, quoted to or relied upon by any other person or entity for any purpose, without our prior written consent. Please note that we are opining only as to the matters expressly set forth herein and no opinion should be inferred as to any other matters. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
Very truly yours,
/s/ THOMPSON COBURN LLP
Exhibit 15
December 7, 2023
Arrow Financial Corporation
Glens Falls, New York
Re: Registration Statement on Form S-8 related to the Arrow Financial Corporation 2023 Directors’ Stock Plan
With respect to the subject registration statement, we acknowledge our awareness of the use therein of our report dated November 9, 2023 related to our review of interim financial information.
Pursuant to Rule 436 under the Securities Act of 1933 (the Act), such report is not considered part of a registration statement prepared or certified by an independent registered public accounting firm, or a report prepared or certified by an independent registered public accounting firm within the meaning of Sections 7 and 11 of the Act.
/s/ KPMG LLP
Albany, New York
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors Arrow Financial Corporation:
We consent to the use of our report dated July 17, 2023, with respect to the consolidated financial statements of Arrow Financial Corporation, and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Albany, New York
December 7, 2023
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