S-4/A

As filed with the Securities and Exchange Commission on May 1, 2015

Registration No. 333-203102

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

Pre-Effective Amendment No. 1 to the

FORM S-4

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

(Exact name of registrant as specified in its charter)

Delaware	6721	16-1213679
(State or other jurisdiction of incorporation or  organization)	(Primary Standard Industrial Classification  Code Number)	(I.R.S. Employer Identification Number)

5790 Widewaters Parkway

DeWitt, New York 13214

(315) 445-2282

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Mark E. Tryniski

President and Chief Executive Officer

Community Bank System, Inc.

5790 Widewaters Parkway

DeWitt, New York 13214

(315) 445-2282

(Name, address, including zip code, and telephone number, including area code, of agent for service)

With copies to:

Ronald C. Berger, Esq. Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, New York 13202-1355 (315) 218-8000 George J. Getman, Esq. EVP and General Counsel Community Bank System, Inc. 5790 Widewaters Parkway DeWitt, New York 13214 (315) 445-2282 Eric Luse, Esq. Luse Gorman, PC 5335 Wisconsin Ave, NW Suite 780 Washington, DC 20015 (202) 274-2002

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of the registration statement.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

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 definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12 b-2 of the Exchange Act.

Large accelerated filer x	Accelerated filer ¨
Non-accelerated filer ¨ (Do not check if a smaller reporting company)	Smaller reporting company ¨

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ¨

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Amount to be Registered (1)	Proposed Maximum Offering Price per Share	Proposed Maximum Aggregate Offering Price (2)		Amount of Registration Fee (3)
Common Stock, $1.00 par value	2,485,303 Shares	N/A	$	86,268,895	$	10,024

(1) Represents the estimated maximum number of shares of Community Bank System, Inc. common stock estimated to be issuable upon the completion of the merger described herein. This number is based upon the product of (x) the number of shares of Oneida Financial Corp. common stock outstanding and reserved for issuance under various plans as of March 30, 2015; (y) the exchange ratio of 0.5635, pursuant to the Agreement and Plan of Merger, dated February 24, 2015, by and among Community Bank System, Inc. and Oneida Financial Corp., which is attached hereto as Annex A; and (z) 60%, which is the portion of the merger consideration consisting of Community Bank System, Inc. common stock issuable in the merger.

(2) Pursuant to Rule 457(f), the registration fee was computed on the basis of $19.56, the market value of the common stock of Oneida Financial Corp., based upon the average of the high and low sales prices as reported on the NASDAQ Global Market on March 27, 2015, to be exchanged or cancelled in the merger, computed in accordance with Rule 457(c), multiplied by the total number of shares of common stock of Oneida Financial Corp. that may be received by the registrant and/or cancelled upon consummation of the merger, subtracting the amount of cash to be paid by Community Bank System, Inc. for such shares.

(3) Previously paid.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

This Pre-Effective Amendment No. 1 to the Registration Statement on Form S-4 is being filed solely to file exhibits 8.1, 23.3, 23.4 and 99.1 to this Registration Statement (Registration No. 333-203102), and no changes or additions are being made hereby to the proxy statement/prospectus constituting Part I of this Registration Statement or to Items 20, 21 or 22 of Part II of this Registration Statement. Accordingly, such proxy statement/prospectus and Items 20, 21 and 22 of Part II have not been included herein.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of DeWitt, State of New York, on May 1, 2015.

COMMUNITY BANK SYSTEM, INC.
By:	/s/ Mark E. Tryniski
Name:	Mark E. Tryniski
Title:	President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, the registration statement has been signed by the following persons in the capacities and on the date indicated.

Signature	Title	Date
/s/ Mark E. Tryniski	Director, President and Chief Executive Officer	May 1, 2015
Mark E. Tryniski	(Principal Executive Officer)
/s/ Scott Kingsley	Treasurer and Chief Financial Officer	May 1, 2015
Scott Kingsley	(Principal Financial and Accounting Officer)
*	Director	May 1, 2015
Brian R. Ace
*	Director	May 1, 2015
Mark J. Bolus
*	Director	May 1, 2015
Nicholas A. DiCerbo
*	Director	May 1, 2015
Neil E. Fesette
*	Director	May 1, 2015
James A. Gabriel
*	Director	May 1, 2015
James W. Gibson, Jr.

Signature	Title	Date
*	Director	May 1, 2015
Edward S. Mucenski
*	Director	May 1, 2015
John Parente
*	Director	May 1, 2015
Sally A. Steele
*	Director	May 1, 2015
John F. Whipple, Jr.
*	Director	May 1, 2015
James A. Wilson

* Pursuant to a Power of Attorney contained in Exhibit 24.1 to the Registration Statement on Form S-4 of Community Bank System, Inc. filed on March 30, 2015

By:	/s/ Mark E. Tryniski	May 1, 2015
	Mark E. Tryniski
	Attorney-in-fact

Exhibit Index

Exhibit Number	Description of Exhibit
2.1	Agreement and Plan of Merger, dated as of February 24, 2015, by and between Community Bank System, Inc. and Oneida Financial Corp. (attached as Annex A to the Proxy Statement/Prospectus contained in this Registration Statement on Form S-4).
3.1	Certificate of Incorporation of Community Bank System, Inc. (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-4 filed on October 20, 2000 (File No. 333-48374)).
3.2	Certificate of Amendment of Certificate of Incorporation of Community Bank System, Inc. (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q filed on May 7, 2004 (File No. 001-13695)).
3.3	Certificate of Amendment of Certificate of Incorporation of Community Bank System, Inc. (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q filed on August 9, 2013 (File No. 001-13695)).
3.4	Amended Bylaws of Community Bank System, Inc. (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed on July 24, 2007 (File No. 001-13695)).
4.1	Form of Common Stock Certificate of Community Bank System, Inc. (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-3 filed on September 29, 2008 (File No. 333-153403)).
5.1	Opinion of Bond, Schoeneck & King, PLLC as to the validity of the securities being registered.*
8.1	Opinion of Luse Gorman, PC, as to certain tax matters.
10.1	Form of Voting Agreement, by and between Community Bank System, Inc. and the directors and executive officers of Oneida Financial Corp. (attached as Exhibit A to Annex A of the Proxy Statement/Prospectus contained in this Registration Statement on Form S-4).
23.1	Consent of Bond, Schoeneck & King, PLLC (set forth in Exhibit 5.1).*
23.2	Consent of Luse Gorman, PC (set forth in Exhibit 8.1).
23.3	Consent of PricewaterhouseCoopers, LLP.
23.4	Consent of Crowe Horwath LLP.
24.1	Power of Attorney.*
99.1	Form of proxy card for the special meeting of the stockholders of Oneida Financial Corp.
99.2	Consent of Keefe, Bruyette & Woods, Inc.*
99.3	Consent of Michael R. Kallet pursuant to Rule 438 promulgated under the Securities Act of 1933, as amended.*
99.4	Consent of Eric E. Stickels pursuant to Rule 438 promulgated under the Securities Act of 1933, as amended.*

* Previously Filed.

EX-8.1

Exhibit 8.1

LUSE GORMAN, PC

Attorneys at Law

5335 Wisconsin Avenue, N.W., Suite 780

Washington, D.C. 20015

Telephone (202) 274-2000

Facsimile (202) 362-2902

www.luselaw.com

May 1, 2015

Board of Directors

Oneida Financial Corp.

182 Main Street

Oneida, New York 13421

Re: U.S. Federal Tax Consequences of the Merger of Oneida Financial Corp. with and into Community Bank System, Inc.

To the Members of the Board of Directors:

You have requested our opinion as to the United States Federal income tax consequences of the following proposed transaction pursuant to the Agreement and Plan of Merger by and between Oneida Financial Corp, a Maryland corporation (“Oneida Financial”) and Community Bank System, Inc., a Delaware corporation (“CBSI”), dated as of February 24, 2015 (the “Merger Agreement”). Section 6.1(f) of the Merger Agreement provides that a condition to closing of the Merger (as defined below) is the receipt by Oneida Financial of an opinion by Luse Gorman, P.C. that the Merger will be treated for Federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), which shall be provided as of the effective date of CBSI’s Registration Statement on Form S-4 filed with the SEC and the Closing Date of the Merger. The terms used but not defined herein, whether capitalized or not, will have the same meaning as their definitions in the Merger Agreement.

Pursuant to the Merger Agreement, Oneida Financial will merge with and into CBSI, with CBSI as the resulting or surviving corporation in accordance with Federal law and the laws of the States of Maryland and Delaware (the “Merger”). Following the Merger, the separate existence of Oneida Financial will cease and all assets, liabilities, rights, franchises and interests of Oneida Financial will be vested in and assumed by CBSI, as the Surviving Corporation. As of the effective time of the Merger (the “Effective Time”), the following will occur:

(a) All shares of Oneida Financial common stock (other than shares held in a fiduciary capacity) owned by any subsidiary of Oneida Financial, CBSI or any subsidiary of CBSI immediately prior to the Effective Time will, at the Effective Time, be cancelled and no payment or distribution will be made in consideration therefor.

May 1, 2015

Page 2

(b) The aggregate number of outstanding shares of Oneida Financial common stock held by each holder immediately prior to the Effective Time (except for shares of Oneida Financial common stock canceled pursuant to paragraph (a) above) will be converted into the right to receive from CBSI at the election of the holder thereof either: (i) 0.5635 shares of CBSI (the “Stock Consideration”), (ii) $20.00 in cash (the “Cash Consideration), or (iii) a combination of both cash and common stock, provided that 60% of the shares of Oneida Financial common stock held by the person making the election are exchanged for CBSI common stock and 40% of the shares of Oneida Financial common stock held by the person making the election are exchanged for cash. The foregoing election alternatives are subject to the overall allocation requirements and pro ration processes to ensure that in the aggregate 60% of the outstanding shares of Oneida Financial common stock will be converted into Stock Consideration and the remaining outstanding shares of Oneida Financial common stock will be converted into Cash Consideration. No fractional shares of CBSI common stock shall be issued as a result of the Merger. In lieu of fractional shares, each holder of Oneida Financial common stock who would otherwise be entitled to a fraction of a share of CBSI common stock upon the surrender of Oneida Financial common stock shall be paid a cash payment equal to such fraction multiplied by $20.00.

This opinion does not address the state and local tax consequences of the transactions contemplated by the Merger Agreement. Nor does this opinion address foreign laws or other areas of United States Federal taxation other than Federal income tax. For purposes of this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the Merger Agreement and such other documents as we have deemed necessary or appropriate in order to enable us to render the opinions below, including the Registration Statement on Form S-4 (as amended through the date hereof, the “Registration Statement,” which reference will include the proxy statement of Oneida Financial and the prospectus of CBSI). In our examination, we have assumed the genuineness of all signatures where due execution and delivery are requirements to the effectiveness thereof, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such copies. In rendering the opinion set forth below, we have relied, with the consents of CBSI and Oneida Financial, upon certain written representations of each of the parties hereto (which representations we have neither investigated nor verified). For purposes of rendering this opinion, we have assumed that all relevant statements in the Merger Agreement, Registration Statement and written representations of the parties, including those made “to the best knowledge of” or similarly qualified, are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time. We have also assumed that the parties have complied with and, if applicable, will continue to comply with, the relevant covenants contained in the Merger Agreement. Our opinion may not be relied upon and may be invalid if any assumption described above is untrue for any reason.

May 1, 2015

Page 3

In rendering our opinion, we have considered the applicable provisions of the Code, Treasury Regulations, pertinent judicial authorities, interpretative rulings of the Internal Revenue Service and such other authorities as we have considered relevant. We have also assumed that the transactions contemplated by the Merger Agreement will be consummated strictly in accordance with the Merger Agreement.

OPINION

Based solely upon the above-referenced representations, information and assumptions, and taking into consideration the limitations at the end of this opinion, it is our opinion that under current United States Federal income tax law:

1. The Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code;

2. Oneida Financial and CBSI will each be a party to such reorganization within the meaning of Section 368(b) of the Code;

3. No gain or loss will be recognized by CBSI or Oneida Financial as a result of the Merger (Section 361(a) of the Code) (except for amounts resulting from any required change in accounting methods, any income and deferred gain recognized pursuant to Treasury Regulations under Section 1502 of the Code, or other exceptions as set forth in this opinion);

4. No gain or loss will be recognized by Oneida Financial stockholders who receive only shares of CBSI common stock in exchange for their shares of Oneida Financial common stock, except that gain or loss will be recognized on receipt of cash, if any, in lieu of fractional shares (Section 354 of the Code);

5. Each Oneida Financial stockholder’s aggregate tax basis in any shares of CBSI common stock received in the Merger will be same as the aggregate tax basis of the shares of Oneida Financial common stock surrendered in exchange therefor, decreased by the amount of any cash received and any tax basis allocable to the cash received for fractional shares of CBSI common stock, and increased by the amount of gain recognized by the Oneida Financial stockholder with respect to cash received (Section 358(a) of the Code);

6. Gain, but not loss, will be recognized by Oneida Financial stockholders on the exchange of Oneida Financial common stock and cash in an amount equal to the lesser of the Oneida Financial stockholder’s gain realized with respect to such exchange or the amount of cash received (Section 356(a) of the Code); and

May 1, 2015

Page 4

7. Each Oneida Financial stockholder’s holding period in any shares of CBSI common stock received in the Merger will, in each instance, include the period during which the shares of Oneida Financial common stock surrendered in the exchange were held, provided that such shares of Oneida Financial common stock were held as capital assets by the stockholder at the Effective Time (Section 1223(1) of the Code).

****

No assurances are or can be given that the Internal Revenue Service or the courts will agree with the foregoing conclusions, in whole or in part, although it is our opinion that they should. While this opinion represents our considered judgment as to the proper Federal income tax treatment to the parties concerned based upon the law as it exists as of the date of this letter, and the facts as they were presented to us, it is not binding on the Internal Revenue Service or the courts. In the event of any change to the applicable law or relevant facts, we would, of necessity, need to reconsider our views. However, we disclaim any undertaking to advise you of any subsequent changes of the matters stated, represented or assumed herein or any subsequent changes in applicable laws, regulations or interpretations thereof, or the impact of any such changes on this opinion.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the references to our firm name under the headings “Material U.S Tax Consequences of the Merger” and “Legal Matters” in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended or the rules and regulations of the SEC thereunder.

Sincerely,

/s/ LUSE GORMAN, PC

LUSE GORMAN, PC

EX-23.3

Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Amendment No. 1 to the Registration Statement on Form S-4 of our report, dated March 2, 2015, 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, 2014. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

Buffalo, New York

May 1, 2015

EX-23.4

Exhibit 23.4

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Amendment No. 1 to the Registration Statement on Form S-4 of our report dated March 25, 2015 relating to the financial statements of Oneida Financial Corp. appearing in Oneida Financial Corp.’s Annual Report on Form 10-K for the year ended December 31, 2014. We also consent to the reference to our firm under the heading “Experts” in this Registration Statement.

	/s/ Crowe Horwath LLP
New York, New York
May 1, 2015

EX-99.1

Exhibit 99.1