|
As filed with the Securities and Exchange Commission
on July 17, 2024
|
| Registration No. 333- |
|
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
|
|
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
|
|
(Exact name of registrant as specified in its charter)
|
|
Delaware
(State or other jurisdiction
of incorporation or organization) |
16-1213679
(I.R.S. Employer
Identification No.) |
5790 Widewaters Parkway
Dewitt, New York 13214
(Address of Principal Executive Offices) (Zip Code)
Community Financial System, Inc. Deferred Compensation Plan for Directors
Merchants Bancshares, Inc. 1996 Amended and Restated Compensation Plan for Non-Employee
Directors
Merchants Bancshares, Inc. and Subsidiaries Amended and Restated 2008 Compensation Plan for
Non-Employee Directors and Trustees
Merchants Bank Amended and Restated Deferred Compensation Plan for Directors
Merchants Bank Salary Continuation Plan
(Full title of the plan)
Michael N. Abdo, Esq.
Executive Vice President and General Counsel
5790 Widewaters Parkway
DeWitt, New York 13214
(Name and address of agent for service)
(315) 445-2282
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
x |
|
Accelerated filer |
¨ |
| Non-accelerated filer |
¨ |
|
Smaller reporting company |
¨ |
| |
|
Emerging growth company |
¨ |
If an emerging growth
company, indicated by check mark if the registration 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.
¨
INTRODUCTION
This Registration Statement
on Form S-8 is filed by Community Financial System, Inc. (the “Registrant”) to register an additional (i) 25,000
shares of the Registrant’s common stock, par value $1.00 per share (“Common Stock”) under the Community Financial System, Inc.
Deferred Compensation Plan for Directors, as amended, (ii) 34,000 shares of Common Stock under the Merchants Bancshares, Inc.
1996 Amended and Restated Compensation Plan for Non-Employee Directors, (iii) 14,000 shares of Common Stock under the Merchants Bancshares, Inc.
and Subsidiaries Amended and Restated 2008 Compensation Plan for Non-Employee Directors and Trustees, (iv) 800 shares of Common Stock
under the Merchants Bank Amended and Restated Deferred Compensation Plan for Directors, and (v) 1,400 shares of Common Stock under
the Merchants Bank Salary Continuation Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the
information required in Part I of Form S-8 will be delivered to participants in the Community Financial System, Inc. Deferred
Compensation Plan for Directors, as amended, the Merchants Bancshares, Inc. 1996 Amended and Restated Compensation Plan for Non-Employee
Directors, the Merchants Bancshares, Inc. and Subsidiaries Amended and Restated 2008 Compensation Plan for Non-Employee Directors
and Trustees, the Merchants Bank Amended and Restated Deferred Compensation Plan for Directors and the Merchants Bank Salary Continuation
Plan in accordance with Form S−8 and Rule 428(b) under the Securities Act of 1933, as amended (the "Securities
Act"). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission ("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 herein by reference pursuant to Item 3 of Part II of this Registration Statement,
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, which
have been filed by the Registrant (Commission File No. 001-13695) with the Commission pursuant to the Securities Exchange Act of
1934 (the “Exchange Act”), are incorporated in this registration statement by reference:
(a) The Registrant’s
Annual Report on Form 10−K for the fiscal year ended December 31, 2023.
(b) The Registrant’s
Quarterly Reports on Form 10−Q for the fiscal quarter ended March 31, 2024.
(c) The Registrant’s
Current Reports on Form 8−K filed on January 5, 2024, January 19, 2024, May 16, 2024, and May 17, 2024.
(d) The Registrant’s
Definitive Proxy Statement for the Registrant’s 2024 Annual Meeting of Stockholders filed on March 29, 2024.
(e) The description
of the Company’s common stock contained in the Registration Statement on Form 8-A (File No. 001-13695) filed on December 9, 1997, including any amendments or reports filed for the purpose of updating such description.
All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than current reports on Form 8−K
furnished pursuant to Item 2.02 or Item 7.01 of Form 8−K, including any exhibits included with such information, unless otherwise
indicated therein), 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 to be incorporated by reference herein and to be
a part hereof from the date of filing of such documents.
Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein, or any document forming any part of the Section 10(a) prospectus to
be delivered to participants in connection herewith, modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Michael N. Abdo, Esq.,
who has rendered an opinion as to the validity of the common stock being registered by this Registration Statement, is an officer of the
Registrant and, as of July 17, 2024, beneficially owned 7,013 shares of Common Stock and held options to purchase 21,970 shares of
Common Stock.
| Item 6. | Indemnification of Directors and Officers. |
The Registrant is a Delaware
corporation. Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may 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 the person 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, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person
in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner 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 that his or her conduct was illegal.
This power to indemnify applies
to actions or suits brought by or in the right of the corporation to procure a judgment in its favor as well, but only to the extent of
expenses (including attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner 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 claim,
issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the
Delaware Court of Chancery or the court in which such action was brought shall determine 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
which the court shall deem proper.
Section 145 of the DGCL
further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) of Section 145, or in the defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith;
that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation shall have power to purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or
her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145.
Article 9 of the Registrant’s
Certificate of Incorporation provides that the Registrant’s directors shall not be liable to the Registrant or its shareholders
for monetary damages as a result of breach of fiduciary duty, except for liability in connection with a breach of a director’s duty
of loyalty, for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of the law, for a transaction
from which a director derives an improper personal benefit, or for liability arising under Section 174 of the DGCL.
Article 7 of the Registrant’s
Bylaws provides that the Registrant shall indemnify any person made, or threatened to be made, a party to an action, suit or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the
registrant against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement, to the fullest extent
and in the manner set forth in and permitted by the DGCL, and any other applicable law, as from time to time in effect.
The Registrant is insured
against liabilities it may incur by reason of its indemnification of officers and directors in accordance with its Bylaws. In addition,
as permitted under Delaware law, the Registrant maintains liability insurance covering directors and officers of the Registrant and its
subsidiaries.
The foregoing summaries are
necessarily subject to the complete texts of Section 145 of the DGCL, the Registrant’s Certificate of Incorporation, as amended,
and the Registrant’s Bylaws, as amended, referred to above and are qualified in their entirety by reference thereto.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
(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 (1)(a)(i) and (1)(a)(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 with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 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 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.
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 the Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in City of DeWitt, State of New York, on the 17th day of July, 2024.
| |
COMMUNITY FINANCIAL SYSTEM, INC. |
| |
|
|
| |
By: |
/s/ Dimitar K. Karaivanov |
| |
|
Dimitar A. Karaivanov |
| |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Dimitar A. Karaivanov and Joseph E. Sutaris, and each of them,
his or her true and lawful attorneys−in−fact and agents, with full power of substitution and re−substitution, for him
or her in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys−in−fact and agents, and each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys−in−fact and agents, or any of them, or their or
his or her substitute or substitutes, may lawfully 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 dates
indicated.
| SIGNATURE |
|
TITLE |
|
DATE |
| |
|
|
|
|
| /s/ Dimitar A. Karaivanov |
|
President, Chief Executive Officer and Director |
|
July 17, 2024 |
| Dimitar A. Karaivanov |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Joseph E. Sutaris |
|
Treasurer and Chief Financial Officer |
|
July 17, 2024 |
| Joseph E. Sutaris |
|
(Principal Financial Officer) |
|
|
| |
|
|
|
|
| /s/ Eric E. Stickels |
|
Chair of the Board |
|
July 17, 2024 |
| Eric E. Stickels |
|
|
|
|
| |
|
|
|
|
| /s/ Mark J. Bolus |
|
Director |
|
July 17, 2024 |
| Mark J. Bolus |
|
|
|
|
| |
|
|
|
|
| /s/ Neil E. Fesette |
|
Director |
|
July 17, 2024 |
| Neil E. Fesette |
|
|
|
|
| |
|
|
|
|
| /s/ Jeffery J. Knauss |
|
Director |
|
July 17, 2024 |
| Jeffery J. Knauss |
|
|
|
|
| |
|
|
|
|
| /s/ Kerrie D. MacPherson |
|
Director |
|
July 17, 2024 |
| Kerrie D. MacPherson |
|
|
|
|
| |
|
|
|
|
| /s/ John Parente |
|
Director |
|
July 17, 2024 |
| John Parente |
|
|
|
|
| |
|
|
|
|
| /s/ Raymond C. Pecor, III |
|
Director |
|
July 17, 2024 |
| Raymond C. Pecor, III |
|
|
|
|
| |
|
|
|
|
| /s/ Susan E. Skerritt |
|
Director |
|
July 17, 2024 |
| Susan E. Skerritt |
|
|
|
|
| |
|
|
|
|
| /s/ Sally A. Steele |
|
Director |
|
July 17, 2024 |
| Sally A. Steele |
|
|
|
|
| |
|
|
|
|
| /s/ Michele P. Sullivan |
|
Director |
|
July 17, 2024 |
| Michele P. Sullivan |
|
|
|
|
| |
|
|
|
|
| /s/ John F. Whipple, Jr. |
|
Director |
|
July 17, 2024 |
| John F. Whipple, Jr. |
|
|
|
|
| |
|
|
|
|
INDEX TO EXHIBITS
Exhibit
Number |
|
Description of Exhibit |
| |
|
|
| 4.1 |
|
Amended and Restated Certificate of Incorporation of Registrant. Incorporated by reference to Exhibit No. 3.1 to the Current Report on Form 8-K filed with the Commission on May 16, 2024 |
| |
|
|
| 4.2 |
|
Bylaws of Registrant, as amended and restated. Incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed with the Commission on May 16, 2024. |
| |
|
|
| 5.1+ |
|
Opinion of Michael N. Abdo, Esq. regarding to the validity of the shares being registered. |
| |
|
|
| 23.1+ |
|
Consent of PricewaterhouseCoopers LLP. |
| |
|
|
| 23.2+ |
|
Consent of Michael N. Abdo, Esq. (included in Exhibit 5.1). |
| |
|
|
| 99.1+ |
|
Community Financial System, Inc. Deferred Compensation Plan for Directors, amended and restated. |
| |
|
|
| 99.2 |
|
Merchants Bancshares, Inc. and Subsidiaries Amended and Restated 1996 Compensation Plan for Non-Employee Directors. Incorporated by reference to Exhibit 10.3 to Merchants Bancshares, Inc.'s Annual Report on Form 10-K filed with the Commission on March 15, 2011. |
| |
|
|
| 99.3 |
|
Merchants Bancshares, Inc. and Subsidiaries Amended and Restated 2008 Compensation Plan for Non-Employee Directors and Trustees. Incorporated by reference to Exhibit 10.4 to Merchants Bancshares, Inc.'s Annual Report on Form 10-K filed with the Commission on March 15, 2011. |
| |
|
|
| 99.4 |
|
Merchants Bank Amended and Restated Deferred Compensation Plan for Directors. Incorporated by reference to Exhibit 10.7 to Merchants Bancshares, Inc.'s Annual Report on Form 10-K filed with the Commission on March 15, 2011. |
| |
|
|
| 99.5 |
|
Merchants Bank Salary Continuation Plan. Incorporated by reference to Exhibit 10.9 to Merchants Bancshares, Inc.'s Annual Report on Form 10-K filed with the Commission on March 15, 2011. |
| |
|
|
| 107 |
|
Filing fee table |
+ Filed herewith.
EXHIBIT 5.1
5790 Widewaters Parkway
DeWitt, New York 13214
Michael N. Abdo
Executive Vice President and General Counsel
July 17, 2024
Community Financial System, Inc.
5790 Widewaters Parkway
DeWitt, New York 13214
Ladies and Gentlemen:
I am the Executive Vice
President and General Counsel of Community Financial System, Inc., a Delaware corporation (the “Company”) and have
acted as its counsel in connection with the registration statement on Form S-8 (the “Registration Statement”) being
filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Act”), relating to the registration of 75,200 shares of common stock, $1.00 par value per share (the
“Shares”), which may be issued pursuant to the Community Financial System, Inc. Deferred Compensation Plan for
Directors, as amended, the Merchants Bancshares, Inc. 1996 Amended and Restated Compensation Plan for Non-Employee Directors,
the Merchants Bancshares, Inc. and Subsidiaries Amended and Restated 2008 Compensation Plan for Non-Employee Directors and
Trustees, the Merchants Bank Amended and Restated Deferred Compensation Plan for Directors and the Merchants Bank Salary
Continuation Plan (collectively, the “Plans”).
For purposes of this letter, I
have examined such documents, records, certificates, and other instruments as I deemed necessary as a basis for this opinion. As to questions
of fact material to the opinion expressed below, I have, when relevant facts were not independently established by me, relied upon
certificates of officers of the Company or other evidence satisfactory to me. In all such examinations, I have assumed (i) the
genuineness of all signatures, (ii) the authenticity of all documents tendered to me as originals, and (iii) the conformity
to original documents of all documents submitted to me as copies. For purposes of rendering the opinion expressed below, I have assumed
that (i) any conditions to the issuance and sale of the Shares pursuant to each Plan made thereunder have been or will be satisfied
in full at the time of each issuance of Shares pursuant to such Plan, (ii) at the time of issuance and sale of each of the Shares
pursuant thereto, each Plan will remain in effect and will not have been amended or modified in any manner that affects adversely the
validity of the Shares upon issuance under the terms of such Plan, and (iii) at the time of issuance and sale of each of the Shares,
there will be authorized but unissued shares of common stock available to the Company in sufficient amounts.
Based upon the foregoing and
subject to the assumptions, limitations, and qualifications set forth herein, I am of the opinion that, subject to the Registration
Statement becoming effective under the Act and compliance with all other applicable securities laws, the Shares have been duly authorized
by the Company and that, when issued in accordance with the terms of the Plans, will be legally issued, fully paid and non-assessable.
I am a member of the bar of
the State of New York, and the opinion expressed herein is limited to matters controlled by the federal securities laws of the United
States of America and the General Corporation Law of the State of Delaware, and I do not express any opinion herein concerning any other
law. This opinion speaks as of today’s date and is limited to present statutes, regulations or judicial interpretations. In rendering
this opinion, I assume no obligation to revise or supplement this opinion should present laws, regulations or judicial interpretations
be changed by legislative or regulatory action, judicial decision or otherwise.
I am furnishing this opinion
in connection with the filing of the Registration Statement with the Commission and this opinion is not to be used, circulated, quoted
or otherwise referred to for any other purpose without my express written consent.
I hereby consent to the filing
of this letter as an exhibit to the Registration Statement and to the reference made to me under the heading “Interests of Named
Experts and Counsel” set forth in the Registration Statement. In giving this consent, I do not thereby admit that I am included
in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| |
Very truly yours, |
| |
|
| |
/s/ Michael N. Abdo |
| |
|
| |
Michael N. Abdo, Esq. |
| |
Executive Vice President and General Counsel |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of Community Financial System, Inc. of our report dated
February 29, 2024 relating to the financial statements and the effectiveness of internal control over financial reporting,
which appears in Community Bank System, Inc.’s Annual Report on Form 10-K for the year ended December 31,
2023.
/s/ PricewaterhouseCoopers LLP
Buffalo, N.Y.
July 17, 2024
EXHIBIT 99.1
COMMUNITY FINANCIAL SYSTEM, INC.
DEFERRED COMPENSATION PLAN FOR DIRECTORS
Amended and Restated as of May 15, 2024
ARTICLE I
PURPOSE AND DEFINITIONS
Section 1.01 – Purpose:
The Company’s Board
of Directors adopted the Community Financial System, Inc. Deferred Compensation Plan for Directors, effective as of January 19,
1994, to provide a uniform mechanism for the elective deferral by members of the Board of Directors of fees payable to them by the Company
and its subsidiaries for their services as directors. The Plan has been amended since 1994. In order to conform to Internal Revenue Code
Section 409A, the Plan is amended and restated in its entirety in this document, which shall be effective as of January 1, 2005.
This amended and restated Plan shall govern the rights and obligations of Plan participants and Community Financial System, Inc.
with respect to all deferred compensation benefits earned under this Plan and all predecessor versions of this Plan, including all benefits
earned by a participant prior to January 1, 2005.
Section 1.02
– Definitions:
For purpose of this plan,
the following terms shall have the meanings ascribed to them below:
(a) “Account”
shall mean the special unfunded memorandum account or accounts maintained by the Company on its books for a Participant under this Plan
in accordance with Section 3.01.
(b) “Beneficiary”
shall mean the beneficiary or beneficiaries designated by a Participant, as provided by Section 3.03, to receive Benefits payable
(if any) subsequent to such Participant’s death.
(c) “Benefits”
shall mean the benefits payable to a Participant or (his Beneficiary) under the terms of this Plan, as more particularly described in
Section 3.01.
(d) “Board
of Directors” shall mean the Board of Directors of the Company.
(e) “Change
in Control” shall mean a change in the ownership or effective control of the Company, or a change in the ownership of a substantial
portion of the assets of the Company, determined in either case in accordance with guidance provided by the United States Secretary of
the Treasury pursuant to Internal Revenue Code Section 409A.
(f) “Change
of Election Form” shall mean the written agreement between the Company and a Participant, in a form provided by the Plan Administrator,
pursuant to which the Participant modifies or revokes his election to defer Fees to be earned in a subsequent Plan Year, delays the Distribution
Date and/or changes the number of installments in which Benefits shall be paid. Change of Election Forms must be filed with the Plan Administrator
no later than the applicable date(s) determined pursuant to Sections 2.02(c) and 3.01. Subject to the other terms of the Plan,
and such limitations as may be imposed by the Plan Administrator, a Change of Election Form may be made applicable to a Participant’s
entire Benefit or to Benefits attributable to Fees deferred during one or more calendar years, as designated by the Participant.
(g) “Company”
shall mean Community Financial System, Inc., a Delaware Corporation and registered bank holding company, and Community Bank, N.A.,
a national banking association.
(h) “Deferred
Fees” shall mean the Fees which a Participant elects to defer pursuant to his Participation Agreement, as provided by Section 2.02.
(i) “Deferred
Shares” shall mean Shares which could have been purchased with Deferred Fees and Dividend Equivalents.
(j) “Director”
shall mean a member of the Board of Directors, provided that such member is not an employee of the Company.
(k) “Distribution
Date” shall mean the date or dates elected by a Participant pursuant to his Participation Agreement as the date on which the payment
of Benefits under this Plan is to commence.
(l) “Dividend
Equivalents” shall mean an amount equal to the dividends which would have been received (without reduction for taxes which would
have been payable on such dividends) had Shares equal in number to Deferred Shares then credited to the Account been issued and outstanding.
(m) “Fees”
shall mean the fees payable to a Director in his/her capacity as a Director, as authorized by the Company’s ByLaws, as in effect
from time to time.
(n) “Participant”
shall mean any Director who has elected to defer any portion of his Fees pursuant to Section 2.02.
(o) “Participation
Agreement” shall mean the written agreement between the Company and a Participant, in a form provided by the Plan Administrator,
which sets forth certain provisions and elections relative to the Plan, the amount of the Deferred Fees, the time, form and manner of
paying Benefits, and such other terms and conditions determined by the Plan Administrator to be appropriate and consistent with the terms
of this Plan.
(p) “Plan”
shall mean the Deferred Compensation Plan for Directors, as amended and restated in this document, which may be amended from time to time.
(q) “Plan
Administrator” shall mean the Trust Department of Community Bank, National Association, or such other person, committee, or entity
which may be designated by the Board of Directors as Plan Administrator from time to time.
(r) “Plan
Year” shall mean each calendar year.
(s) “Shares”
shall mean shares of the Common Stock of the Company.
ARTICLE II
DEFERRAL ELECTION
Section 2.01 – Eligibility:
All Directors who are not
employees of the Company shall be eligible to participate in this Plan.
Section 2.02
– Enrollment in Plan:
(a) A
Director may become a Participant and agree to defer Fees not yet earned by entering into a Participation Agreement prior to the first
day of the Plan Year in which the Participation Agreement is to become effective; provided, however, that a new Director may enter into
a Participation Agreement for Fees not yet earned, if the new Director’s Participation Agreement is executed and delivered to the
Plan Administrator within thirty (30) days of the date the new Director commenced service as a member of the Board of Directors.
(b) The
Deferred Fees in a given Plan Year may be any percentage (in any multiple of 5%) of the Participant’s Fees, but in no event less
than $500 in any Plan Year.
(c) Except
to the extent otherwise provided by this Plan, a Participant may modify or revoke his Participation Agreement with respect to any Fees
to be earned in a subsequent Plan Year by delivery of an executed Change of Election Form to the Plan Administrator at least thirty
(30) days prior to the beginning of the Plan Year for which such revocation or modification is to be effective. Notwithstanding any such
revocation or modification, unless the Participant’s distribution election is modified, amounts previously deferred shall be paid
as previously elected by the Participant.
ARTICLE III
BENEFITS
Section 3.01
– Stock Benefits:
(a) The
Plan Administrator shall establish an Account for each Participant and shall credit to such Account:
(1) on
the date such Participant would have otherwise received payment of his Deferred Fees, such number of Deferred Shares that equals the number
of Shares which could have been purchased with such Deferred Fees; and
(2) until
the Distribution Date, or later if the Participant elects to receive distributions over the three, five or ten year period provided for
in Section 3.01(d), such additional number of Deferred Shares which could have been purchased with Dividend Equivalents.
(b) The
number of Deferred Shares shall be subject to adjustment, as the Plan Administrator deems appropriate, to reflect stock dividends, stock
splits, stock combination, and reorganization affecting Shares.
(c) The
Account shall be payable to the Participant (or his Beneficiary) only in Shares, in a number equal to the Deferred Shares credited to
the Participant’s Account; provided, however, that fractional Shares may, at option of the Company, be paid in cash by the Company.
(d) As
of the Distribution Date, the Account shall be payable, at the Participant’s election as set forth in his Participation Agreement
or applicable Change of Election Form, in either: (1) lump sum; or (2) three, five, or ten annual installments. Except as provided
in Section 3.01(e), such election shall be irrevocable.
(1) In
the event the Participant elects to receive his distribution in the form of installments as provided for in Section 3.01(d), the
first such distribution shall be on the Distribution Date, and all subsequent distributions shall be made on or about January 2 of
each calendar year thereafter.
(2) Each
of the installment distributions provided to the Participant shall equal a number of Shares derived by dividing the number of Deferred
Shares remaining in the Participant’s Account by the number of remaining installments distributable to the Participant.
(3) For
the purposes of determining the amount of an installment payment, “market value” shall be the closing price of the Company’s
stock on the last business day immediately preceding the date of the installment payment.
(4) As
provided in Section 3.01(a)(2), and in accordance with the Company’s dividend reinvestment practices for common stock owners,
the number of Deferred Shares credited to the Participant’s Account shall include such additional number of Deferred Shares which
could have been purchased with Dividend Equivalents that are credited during the installment payment period.
(e) To
the extent a distribution would otherwise be made or commence on a specified Distribution Date elected by a Participant, the Participant
may elect to delay the Distribution Date or change the number of installments, provided that the election will not take effect until the
first day of the 12th month that follows the Plan Administrator’s receipt of the election, the first payment with respect
to which such election is made must be deferred at least five years from the previously-specified Distribution Date, and the election
must be received by the Plan Administrator at least 12 months prior to the date of the first scheduled payment. A distribution election
may not be altered after Benefit payments commence pursuant to that election. Further, except as provided in Section 4.01, no distribution
election may be altered to accelerate a Distribution Date. For purposes of Internal Revenue Code Section 409A, installment payments
shall be considered a single payment.
(f) Notwithstanding
any other term or provision in the Plan, a Participant may make or change a distribution election with respect to Fees deferred prior
to December 31, 2006 by filing a completed Change of Election Form with the Plan Administrator on or before December 31,
2006; provided, however, that no such Change of Election Form may postpone payments otherwise due in 2006 or accelerate into 2006
payments otherwise due after 2006.
(g) In
the event of a Participant’s death prior to payment of the Account in full, the balance of his Account shall be payable to his Beneficiary
in accordance with the terms of this Section and the Participant’s election under his Participation Agreement.
(h) The
Participant (or his Beneficiary) shall have no right to sell, assign, transfer or otherwise convey or encumber his right to receive any
payment of Benefits or any other rights to the Account.
(i) The
Company shall not set aside money in trust or escrow or commit any act to secure payment of the Benefits but shall make payment when
due by delivering Shares from the Company’s treasury Shares or authorized but issued Shares (with fractional Shares paid in cash
at the option of the Company from the Company’s general assets). Participants (or their Beneficiaries) shall have no rights against
the Company, except as general unsecured creditors of the Company, with respect to their Accounts and Benefits.
Section 3.02
– Change in Control:
Upon the occurrence of a Change
in Control, each Participant will receive an immediate distribution of shares of Common Stock equal to the number of Deferred Shares credited
to the Participant. Upon the distribution of all benefits pursuant to this Section 3.02, the Plan shall terminate.
Section 3.03
– Beneficiary Designations:
(a) A
Participant may designate, pursuant to his Participation Agreement, one or more Beneficiaries to receive payment of his Benefits in the
event of his death. Such designation may be changed by filing written notice with the Plan Administrator in a form provided by the Plan
Administrator. If no designation is made, the Participant’s estate shall be deemed to be the Participant’s Beneficiary.
(b) Payments
shall be made equally to all Beneficiaries if more than one Beneficiary is designated and the Participant fails to provide otherwise pursuant
to his Participation Agreement or a subsequent written notice to the Plan Administrator.
(c) All
elections and designations made by the Participant shall be binding upon his Beneficiary.
Section 3.04
– Forfeitability:
Amounts credited to a Participant’s
Account and Benefits under this plan shall not be subject to forfeiture for any reason other than termination or removal of the Participant
as a Director for “cause” (as defined below). In the event the Participant is terminated or removed as a Director for cause,
he shall forfeit all amounts credited to his Account and all Benefits to which he would otherwise be entitled under the terms of this
Plan and his Participation Agreement. For the purposes of this Section, “cause” shall mean acts of dishonesty or moral turpitude
which materially affect the Company, conduct tending to damage the reputation of the Company, conviction of a felony, or willful neglect
or refusal to perform his duties as a Director to the Company.
ARTICLE IV
WITHDRAWALS
Section 4.01
– Emergency:
(a) In
the case of an unforeseeable emergency prior or subsequent to the commencement of Benefit payments, a Participant may apply to the Plan
Administrator for withdrawal of an amount reasonably necessary to satisfy the emergency need. If such application for withdrawal is approved
by the Plan Administrator, the withdrawal will be effective at the later of the date specified in the Participant’s application
or the date of approval by the Plan Administrator and shall be payable in lump sum within thirty (30) days of such effective date.
(b) For
the purposes of this Plan, the term “unforeseeable emergency” means a severe financial hardship to the Participant resulting
from a sudden and unexpected illness or accident of the Participant or a dependent of the Participant, loss of the Participant’s
property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control
of the Participant. Unexpected and unreimbursed expenses which cause great hardship to one Participant may not cause such hardship to
another Participant. Means available to one Participant for meeting a real emergency of a financial nature may not be available to another
Participant. Withdrawals for foreseeable expenditures normally budgetable, such as down payments on a home or purchase of an auto or college
expense, will not be permitted. The Plan Administrator shall not permit withdrawal for unforeseeable emergency to the extent that such
hardship is or may be relieved:
(1) through
reimbursement of compensation by insurance or otherwise;
(2) by
liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship;
or
(3) by
the cessation of the deferral of Fees under the Plan.
(c) In
no event shall the amount of a withdrawal for unforeseeable emergency exceed the amount of Benefits which would have been available if
the Participant had terminated his participation in this Plan at the time of withdrawal. Notwithstanding any other provision of this Plan,
if a Participant makes a withdrawal, the amount of the Participant’s Benefits under the Plan shall be appropriately reduced to reflect
such withdrawal. The remainder of any payable Benefits shall be payable in accordance with otherwise applicable provisions of this Plan
and the Participant’s Participation Agreement.
(d) In
the event a Participant receives a withdrawal for an unforeseeable emergency, then the Participant’s election to defer Fees for
the calendar year of the withdrawal shall be cancelled with respect to Fees earned following the date of the withdrawal. Fees deferred
prior to such cancellation shall be payable in accordance with the otherwise applicable provisions of this Plan and the Participant’s
Participation Agreement. Subject to the election provisions of the Plan, a Participant whose election to defer Fees is cancelled in accordance
with this Section 4.01(d) may elect to defers Fees earned in a subsequent calendar year by completing a new Participation Agreement.
(e) Unforeseeable
emergency withdrawals pursuant to this Article IV shall be subject in all events to the applicable requirements of Internal Revenue
Code Section 409A.
ARTICLE V
NONASSIGNABILITY CLAUSE
Section 5.01
– Nonassignability:
No Participant or Beneficiary
nor any other designee shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive
any payments under this Plan, which payments and rights are expressly declared to be nonassignable and nontransferable. Nor shall any
unpaid Benefits be subject to attachment, garnishment or execution, or be transferable by operation of law in the event of bankruptcy
or insolvency of the Participant except to the extent otherwise required by law.
ARTICLE VI
PLAN ADMINISTRATOR
Section 6.01
– Duties of Plan Administrator:
The Plan Administrator shall
be charged with the general administration of the Plan on behalf of the Company, and shall have all powers necessary to accomplish those
purposes, including, but not by way of limitation, the following:
(a) To
construe, interpret and administer the Plan;
(b) To
make allocations and determinations required by the Plan;
(c) To
compute and certify to the Company the amount and kind of Benefits payable to Participants or their Beneficiaries;
(d) To
authorize all disbursements by the Company pursuant to the Plan;
(e) To
maintain the necessary records for the administration of the Plan;
(f) To
make and publish such rules for the regulation of the Plan consistent with its terms;
(g) To
enter into Participation Agreements with Participants on behalf of the Company; and
(h) To
accept, review and implement Change of Election Forms.
Section 6.02
– Compensation, Indemnity and Liability:
The Plan Administrator shall
receive such compensation for its services under this Plan as agreed to by the Company. The Plan Administrator shall not be liable for
any act or omission on its part, except its own willful misconduct or gross negligence. The Company shall indemnify and save harmless
the Plan Administrator against any and all expenses and liabilities arising out of the performance of its duties under this Plan, except
expenses and liabilities arising out of its own willful misconduct or gross negligence.
Section 6.03
– Determinations of Plan Administrator:
The Plan, each Participation
Agreement, and each Change of Election Form shall be interpreted and applied in all circumstances in a manner that is consistent
with the Company's intentions that the Plan satisfy the requirements of Internal Revenue Code Section 409A and that Benefits accumulated
and paid pursuant to the Plan shall not be subject to the premature income recognition or adverse tax provisions of Internal Revenue Code
Section 409A. All determinations of the Plan Administrator in the interpretation and administration of this Plan (including, but
not limited to, determinations as to the amounts of the Benefits payable to a Participant or his Beneficiary) shall be conclusive and
binding upon Participants and their Beneficiaries.
ARTICLE VII
SOURCE OF PAYMENTS
Section 7.01
– Source of Payments:
Unless otherwise directed
by the Board, all Benefits under this Plan shall be paid by the Company in the form of Shares delivered from the Company’s treasury
Shares or authorized but unissued Shares (with fractional Shares paid in cash from the general assets of the Company). No special fund
shall be established and no special segregation of assets shall be made to assure the payment of Benefits under this Plan. A Participant
shall have no right, title or interest whatever in or to any investments which the Company may make to aid it in meeting its obligations
under this Plan, pursuant to Section 7.02 or otherwise. Nothing contained in this Plan and no action taken pursuant to its provisions
shall create or be construed to create a trust of any kind or a fiduciary relationship between the Company or the Plan Administrator and
any Participant or any other person. To the extent any person acquires a right to receive payments under this Plan from the Company, such
right shall be no greater than the right of an unsecured general creditor of the Company.
Section 7.02
– Reserves:
For the purpose of aiding
the Company in providing for payments under this Plan, the Company may maintain a reserve fund which shall remain, at all times, a part
of the general assets of the Company. The Company shall not be obliged to maintain such a reserve fund. If a reserve fund is maintained,
its funds may be invested in securities, certificates of deposit, insurance or annuity contracts, or any other assets selected by the
Company in its sole discretion, without the approval or direction of any Participant.
Section 7.03
– Constructive Receipt:
It is intended that Deferred
Fees and Benefits under this Plan shall not be includible in a Participant’s gross income until actual receipt of such amounts by
the Participant. However, neither the Company nor the Plan Administrator represent or warrant to any Participant that, under existing
or future law, rules, regulations, or determinations of the Internal Revenue Service of any court, such amounts shall not be includible
in a Participant’s gross income prior to actual receipt.
ARTICLE VIII
MISCELLANEOUS
Section 8.01
– Continued Employment:
Participation in this Plan
shall not give any Participant the right to be retained as a Director or employee of the Company.
Section 8.02
– Taxes and Fees:
(a) The
Company shall be entitled to reduce any amount payable or creditable to a Participant (including, but not limited to, Deferred Fees, the
Fees which the Participant does not elect to defer, and Benefits under this Plan) or to otherwise require adequate provision for payment
of FICA, FUTA, and Federal and state income tax withholding, or similar taxes which the Company is required by law to withhold.
(b) In
addition, the amount of any Benefit payable to a Participant (or his Beneficiary) shall be reduced by the fees and expenses paid by the
Company to the Plan Administrator with regard to the administration and provision of such Benefits in the event such Participant’s
employment as a Director is terminated prior to his Distribution Date for any reason other than the merger or consolidation of the Company
into another corporation or organization with the other corporation or organization being the survivor.
Section 8.03
– Amendment or Termination of Plan:
The Company shall have the
right to amend or terminate this Plan at any time; provided, however, no such amendment or termination shall affect in any way the Benefits
which the Participant or his Beneficiary is entitled to receive as of the date of such amendment or termination.
Section 8.04
– Change of Business Form:
The Company shall not merge
or consolidate with any other corporation or organization or terminate its existence without having made adequate provision for the fulfillment
of its obligations under this Plan and the Participant Agreements.
Section 8.05
– Construction:
Words of masculine gender
shall mean and include correlative words of the feminine and neutral genders and words importing the singular shall mean and include the
plural number and vice versa.
Section 8.06
– Effective Date:
This Plan is effective as of January 1,
2005.
Section 8.07
– Law:
This Plan shall be governed
by the laws of the State of New York, other than its law respecting choice of law, to the extent not preempted by any Federal law.
| |
COMMUNITY FINANCIAL SYSTEM, INC. |
| |
COMMUNITY BANK, N.A. |
| |
|
| |
By: |
/s/ Maureen Gillan-Myer |
| |
Title: |
EVP and Chief Human Resources Officer |
| |
Date: |
May 15, 2024 |
EXHIBIT 107
Calculation of Filing
Fee Tables
FORM S-8
(Form Type)
Community
FINANCIAL System, Inc.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
Securities
Security
Type |
|
Security
Class Title |
|
Fee
Calculation
Rule |
|
Amount
Registered(1) |
|
Proposed
Maximum
Offering
Price Per
Unit(2) |
|
Proposed
Maximum
Aggregate
Offering Price |
|
Fee
Rate |
|
Amount
of
Registration Fee (3) |
| Equity |
|
Common
Stock, par value $1.00 per share |
|
Other |
|
25,000(4) |
|
$47.51 |
|
$1,187,750 |
|
0.00014760 |
|
$175.31 |
| Equity |
|
Common
Stock, par value $1.00 per share |
|
Other |
|
34,000(5) |
|
$47.51 |
|
$1,615,340 |
|
0.00014760 |
|
$238.42 |
| Equity |
|
Common
Stock, par value $1.00 per share |
|
Other |
|
14,000(6) |
|
$47.51 |
|
$665,140 |
|
0.00014760 |
|
$98.17 |
| Equity |
|
Common
Stock, par value $1.00 per share |
|
Other |
|
800(7) |
|
$47.51 |
|
$38,008 |
|
0.00014760 |
|
$5.61 |
| Equity |
|
Common
Stock, par value $1.00 per share |
|
Other |
|
1,400(8) |
|
$47.51 |
|
$66,514 |
|
0.00014760 |
|
$9.82 |
| |
|
|
|
|
| |
|
Total
Offering Amounts |
|
$3,572,752 |
|
|
|
$527.34 |
| |
|
|
|
|
| |
|
Total
Fee Offsets(9) |
|
|
|
|
|
$0 |
| |
|
|
|
|
| |
|
Net
Fee Due |
|
|
|
|
|
$527.34 |
| (1) | This registration statement registers the shares of Common Stock set forth above, and pursuant to Rule 416 of the Securities
Act of 1933, as amended (the "Securities Act"), this registration statement shall be deemed to cover any additional shares of
Common Stock which may be issuable under the Community Financial System, Inc. Deferred Compensation Plan for Directors, as amended,
the Merchants Bancshares, Inc. 1996 Amended and Restated Compensation Plan for Non-Employee Directors, the Merchants Bancshares, Inc.
and Subsidiaries Amended and Restated 2008 Compensation Plan for Non-Employee Directors and Trustees, the Merchants Bank Amended and Restated
Deferred Compensation Plan for Directors and the Merchants Bank Salary Continuation Plan to reflect stock splits, stock dividends, mergers
and other capital changes. |
| (2) | Pursuant to Rules 457(c) and (h) under the Securities Act, the proposed maximum offering price per share and the proposed
maximum aggregate offering price are estimated for the purpose of calculating the amount of the registration fee and are based on the
average of the high and low sales price of the Registrant’s Common Stock as reported on the New York Stock Exchange on July 10,
2024. |
| (3) | Rounded up to the nearest penny. |
| (4) | Represents 25,000 additional shares of Common Stock reserved for issuance under the Community Financial System, Inc. Deferred
Compensation Plan for Directors, as amended. |
| (5) | Represents 34,000 additional shares of Common Stock reserved for issuance under the Merchants Bancshares, Inc. 1996 Amended and
Restated Compensation Plan for Non-Employee Directors. |
| (6) | Represents 14,000 additional shares of Common Stock reserved for issuance under the Merchants Bancshares, Inc. and Subsidiaries
Amended and Restated 2008 Compensation Plan for Non-Employee Directors and Trustees. |
| (7) | Represents 800 additional shares of Common Stock reserved for issuance under the Merchants Bank Amended and Restated Deferred Compensation
Plan for Directors. |
| (8) | Represents 1,400 additional shares of Common Stock reserved for issuance under the Merchants Bank Salary Continuation Plan. |
| (9) | The Registrant does not have any fee offsets. |
Community Financial System (NYSE:CBU)
Historical Stock Chart
From Jun 2024 to Jul 2024
Community Financial System (NYSE:CBU)
Historical Stock Chart
From Jul 2023 to Jul 2024
