Registration No. 333-_________
As filed with the Securities and Exchange Commission on June 21, 2021
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Chemung Financial Corporation
(Exact Name of Registrant as Specified in its Charter)
| New York | 16-1237038 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
One Chemung Canal Plaza
Elmira, NY 14901
(Address of Principal Executive Offices)
Chemung Financial Corporation 2021 Equity Incentive Plan
(Full Title of the Plan)
Copies to:
| Anders M. Tomson | Benjamin M. Azoff, Esq. | |
| President and Chief Executive Officer | Jeffrey M. Cardone, Esq. | |
| Chemung Financial Corporation | Luse Gorman, PC | |
| One Chemung Canal Plaza | 5335 Wisconsin Ave., N.W., Suite 780 | |
| Elmira, New York 14901 | Washington, DC 20015-2035 | |
| (607) 737-3711 | (202) 274-2000 | |
| (Name, Address and Telephone | ||
| Number of Agent for Service) | ||
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”):
| Large accelerated filer ☐ | Accelerated filer ☐ |
| Non-accelerated filer ☒ | Smaller reporting company ☒ |
| Emerging growth 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. ☐
CALCULATION OF REGISTRATION FEE
|
Title of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
| Common stock, par value $0.01 per share | 170,000 (1) | $42.76 (2) | $7,269,200.00 | $795 |
_________________________
| (1) | Represents the maximum number of shares of the registrant’s common stock, par value $0.01 (“Common Stock”), reserved for issuance under the Chemung Financial Corporation 2021 Equity Incentive Plan (the “Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended, (the “Securities Act”), this registration statement also covers additional shares that may become issuable under the Plan by reason of certain corporate transactions or events, including any stock split, stock dividend or similar adjustment of the outstanding Common Stock of Chemung Financial Corporation (the “Company”) pursuant to 17 C.F.R. Section 230.416(a). |
| (2) | Determined pursuant to 17 C.F.R. Section 230.457(h)(1) of the Securities Act. |
_________________________
This Registration Statement shall become effective upon filing in accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. § 230.462 under the Securities Act.
PART I.
Items 1 and 2. Plan Information, and Registrant Information and Employee Plan Annual Information
The documents containing the information specified in Part I of Form S-8 have been or will be sent or given to participants in the Plan as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act.
Such documents are not being filed with the Commission, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the Commission are hereby incorporated by reference in this Registration Statement:
a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (File No. 001-35741), filed with the Commission on March 24, 2021 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in (a) above; and
c) The description of the Company’s common stock contained in the Company’s registration statement on Form 8-A filed on November 15, 2012 under Section 12 of the Exchange Act, which incorporates the description of the Company’s common stock contained in the registration statement on Form S-4 filed with the Commission on January 3, 2011.
All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement and the prospectus.
All information appearing in this Registration Statement and the prospectus is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein or therein by reference.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
New York Business Corporation Law
As authorized by Section 722 of the New York Business Corporation Law, the Company may indemnify its directors and officers against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had not reasonable cause to believe his conduct was unlawful. If the legal proceeding, however, is by or in the right of the Company, the director or officer may not be indemnified in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which he shall have been adjudged to be liable to the Company unless and only to the extent that, the court in which the action was brought, or if not action was brought, any court of competent jurisdiction, determines that, in view of all the circumstances of the case, the director or officer is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Certificate of Incorporation
Article 9 of the Company’s Certificate of Incorporation provides that the Company shall indemnify its directors and officers, to the fullest extent permitted by law, against all liabilities and expenses they reasonably incur in any action or proceeding to which they may become a party by virtue of being a director or officer of the Company or another company for which such persons served as a director or officer at the Company’s request.
Further, the certificate of incorporation, as amended, of the Company provides that a director of the Company shall not be liable to the Company or its stockholders for damages for any breach of duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the Business Corporation Law as the same exists or may hereafter be amended. Any repeal or modification of this provision of the certificate of incorporation by the stockholders of the Company shall not adversely affect any right or protection of a director of the Company existing at the time of such repeal or modification.
Bylaws
Article XI of the Company’s Bylaws provides that the Company shall, to the fullest extent permitted by applicable law, as amended from time to time, indemnify each person made or threatened to be made a party to any action or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding") by reason of the fact that such person, such person's testator or intestate, is or was a director or officer of the Company, or, while a director or officer, serves or served, at the request of the Company, any other Company, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses (including attorneys' fees, costs and charges) incurred in connection with such threatened or pending Proceeding, or any appeal thereof; provided, however, that no such indemnification shall be made if a judgment or other final adjudication adverse to such person establishes that (i) his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or (ii) he or she personally gained, in fact, a financial profit or other advantage to which he or she was not legally entitled, and provided further that no such indemnification shall be required with respect to any settlement or other non-adjudicated disposition of any threatened or pending Proceeding unless the Company has given its prior written consent to such settlement or other disposition.
Article XI provides further that the Company shall, from time to time, advance or promptly reimburse upon request, to any director or officer seeking indemnification hereunder the funds necessary for payment of expenses (including attorneys' fees, costs and charges), reasonably incurred in connection with any threatened or pending proceeding and in advance of the final disposition thereof, upon receipt of a written undertaking by or on behalf of such person to repay such amount if such person is ultimately found not to be entitled to indemnification, or, where indemnification is granted, to the extent the expenses so advanced or reimbursed exceed the amount to which such person is entitled.
The right to indemnification and payment of expenses set forth in Article XI is in addition to and exclusive of any such rights arising under any statute, rule, regulation, certificate of incorporation, bylaw, resolution of directors or shareholders, insurance policy, contract or otherwise.
As authorized in Article XI, the Company has a policy of liability insurance covering its directors and officers, the effect of which is to reimburse the directors and officers of the Company against certain damages and expenses resulting from certain claims made against them caused by their negligent act, error or omission.
The foregoing is a summary and is qualified by reference to the Company’s Certificate of Incorporation and Bylaws, each as amended.
Item 7. Exemption From Registration Claimed.
Not applicable.
| Item 8. | Exhibits. |
_________________________
| * | Incorporated by reference to Exhibit 4.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002, filed with the Commission on March 24, 2003 (File No. 000-13888). |
| ** | Incorporated by reference to Appendix A to the Company’s proxy statement for the Annual Meeting of Shareholders of Chemung Financial Corporation, filed with the Commission on April 26, 2021(File No. 001-35741). |
Item 9. Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement 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;
2. That, for the purpose of determining any liability under the Securities Act, 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;
4. That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 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;
5. 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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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; and
6. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Elmira, State of New York, on this 21st day of June, 2021.
|
CHEMUNG FINANCIAL CORPORATION
| |
| By: | /s/ Anders M. Tomson |
| Anders M. Tomson | |
| President and Chief Executive Officer | |
| (Principal Executive Officer) |
We, the undersigned directors of Chemung Financial Corporation (the “Company”) hereby severally constitute and appoint Anders M. Tomson, as our true and lawful attorneys and agents, to do any and all things in our names in the capacities indicated below which said Anders M. Tomson may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the registration of shares of common stock reserved for issuance under the Chemung Financial Corporation 2021 Equity Incentive Plan, including specifically, but not limited to, power and authority to sign for us in our names in the capacities indicated below the registration statement and any and all amendments (including post-effective amendments) thereto; and we hereby approve, ratify and confirm all that said Anders M. Tomson shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the date indicated.
| Signatures | Title | Date | ||
| /s/ Anders M. Tomson | President, Chief Executive Officer | June 21, 2021 | ||
| Anders M. Tomson | and Director | |||
| (Principal Executive Officer) | ||||
| /s/ Karl F. Krebs | Executive Vice President, Chief | June 21, 2021 | ||
| Karl F. Krebs | Financial Officer and Treasurer | |||
| (Principal Financial and Accounting Officer) | ||||
| /s/ Raimundo C. Archibold Jr. | Director | June 21, 2021 | ||
| Raimundo C. Archibold Jr. | ||||
|
|
||||
| /s/ Larry H. Becker | Director | June 21, 2021 | ||
| Larry H. Becker | ||||
| /s/ Ronald M. Bentley | Director | June 21, 2021 | ||
| Ronald M. Bentley |
| /s/ David M. Buicko | Director | June 21, 2021 | ||
| David M. Buicko | ||||
| /s/ David J. Dalrymple | Chairman of the Board of Directors | June 21, 2021 | ||
| David J. Dalrymple | ||||
| /s/ Robert H. Dalrymple | Director | June 21, 2021 | ||
| Robert H. Dalrymple | ||||
| /s/ Richard E. Forrestel, Jr. | Director | June 21, 2021 | ||
| Richard E. Forrestel, Jr. | ||||
| /s/ Denise V. Gonick | Director | June 21, 2021 | ||
| Denise V. Gonick | ||||
| /s/ Stephen M. Lounsberry, III | Director | June 21, 2021 | ||
| Stephen M. Lounsberry, III | ||||
| /s/ Jeffrey B. Streeter | Director | June 21, 2021 | ||
| Jeffrey B. Streeter | ||||
| /s/ G. Thomas Tranter, Jr. | Director | June 21, 2021 | ||
| G. Thomas Tranter, Jr. | ||||
| /s/ Thomas R. Tyrrell | Director | June 21, 2021 | ||
| Thomas R. Tyrrell |
Exhibit 5
OPINION OF LUSE GORMAN, PC
LUSE GORMAN, PC
A PROFESSIONAL CORPORATION
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
June 21, 2021
Board of Directors
Chemung Financial Corporation
One Chemung Canal Plaza
Elmira, New York 14902
| Re: | Chemung Financial Corporation 2021 Equity Incentive Plan |
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested the opinion of this firm as to certain matters in connection with the registration of 170,000 shares of common stock, $0.01 par value per share (the “Shares”), of Chemung Financial Corporation (the “Company”) to be issued pursuant to the Chemung Financial Corporation 2021 Equity Incentive Plan (the “Plan”).
In rendering the opinion expressed herein, we have examined originals or copies, certified or otherwise identified to our satisfaction of the following: (i) the Company’s Registration Statement on Form S-8 (the “Form S-8”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on the date hereof; (ii) the Certificate of Incorporation of the Company, as amended to date and currently in effect; (iii) the Bylaws of the Company, as amended to date and currently in effect; (iv) the Plan; (v) certain resolutions of the board of directors of the Company relating to the approval of the Plan, the filing of the Registration Statement, and certain related matters; and (vi) applicable statutes and regulations governing the Company. We have assumed the authenticity, accuracy and completeness of all documents in connection with the opinion expressed herein. We have also assumed the legal capacity and genuineness of the signatures of persons signing all documents in connection with which the opinions expressed herein are rendered.
Based on the foregoing, we are of the following opinion:
Following the effectiveness of the Form S-8, the Shares of the Company, when issued in accordance with the terms and conditions of the Plan, will be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in connection with the preparation and filing of the Form S-8, and shall not be used for any other purpose or relied upon by any other person without the prior express written consent of this firm. We hereby consent to the use of this opinion in the Form S-8. By giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, | |
| /s/ Luse Gorman, PC | |
| LUSE GORMAN, PC | |
Exhibit 10.2
INCENTIVE STOCK OPTION AWARD AGREEMENT
Stock Option
Granted by
CHEMUNG FINANCIAL CORPORATION
under the
CHEMUNG FINANCIAL CORPORATION
2021 EQUITY INCENTIVE PLAN
This stock option agreement (“Option” or “Agreement”) is and will be subject in every respect to the provisions of the 2021 Equity Incentive Plan (the “Plan”) of Chemung Financial Corporation (the “Company”) which are incorporated herein by reference and made a part hereof, subject to the provisions of this Agreement. A copy of the Plan has been provided to each person granted a stock option pursuant to the Plan. The holder of this Option (the “Participant”) hereby accepts this Option, subject to all the terms and provisions of the Plan and this Agreement, and agrees that all decisions under and interpretations of the Plan and this Agreement by the Compensation Committee of the Board of Directors of the Company (“Committee”) will be final, binding and conclusive upon the Participant and the Participant’s heirs, legal representatives, successors and permitted assigns. Except where the context otherwise requires, the term “Company” will include the parent and all present and future subsidiaries of the Company as defined in Section 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”). Capitalized terms used herein but not defined will have the same meaning as in the Plan.
| 1. | Name of Participant. ______________________________________________________ |
| 2. | Date of Grant. _________, 20__. |
| 3. | Total number of shares of Company common stock, $0.01 par value per share, that may be acquired pursuant to this Option. ___________________________________________ | |
| (subject to adjustment pursuant to Section 10 hereof). |
| · | This is an Incentive Stock Option (“ISO”) to the maximum extent permitted under Code Section 422(d). |
| 4. | Exercise price per share. $ __________ | |
| (subject to adjustment pursuant to Section 10 below) |
| 5. | Expiration Date of Option. ________, 20__ |
| 6. | Vesting Schedule. Except as otherwise provided in this Agreement, this Option first becomes exercisable, subject to the Option’s expiration date, in accordance with the vesting schedule specified herein. |
The Options granted under this Agreement shall vest in ___ (__) equal annual installments, with the first installment becoming exercisable on the first anniversary of the date of grant, or _______, 20__, and succeeding installments on each anniversary thereafter, through ________, 20__. To the extent the Options awarded to me are not equally divisible by “__,” any excess Options shall vest on ________, 20__.
This Option may not be exercised at any time on or after the Option’s expiration date. Unless otherwise provided by action of the Committee in accordance with the Plan, this Option will vest pursuant to Section 2.8 of the Plan in the event of death, Disability and pursuant to Section 4.1 of the Plan in the event of Involuntary Termination following a Change in Control.
| 7. | Exercise Procedure. |
| 7.1 | Delivery of Notice of Exercise of Option. This Option will be exercised in whole or in part by the Participant’s delivery to the Company of written notice (the “Notice of Exercise of Option” attached hereto as Exhibit A) setting forth the number of shares with respect to which this Option is to be exercised, together with payment by cash or other means acceptable to the Committee, including: |
| · | Cash or personal, certified or cashier’s check in full/partial payment of the purchase price. |
| · | Stock of the Company in full/partial payment of the purchase price. |
| · | By a net settlement of the Option, using a portion of the shares obtained on exercise in payment of the exercise price of the Option (and, if applicable, any required tax withholding). |
| · | By selling shares from my Option shares through a broker in full/partial payment of the purchase price. |
| 7.2 | “Fair Market Value” shall have the meaning set forth in Section 8.1(s) of the Plan. |
| 8. | Delivery of Shares. |
| 8.1 | Delivery of Shares. Delivery of shares of Common Stock upon the exercise of this Option will comply with all applicable laws (including the requirements of the Securities Act) and the applicable requirements of any securities exchange or similar entity. |
| 9. | Change in Control. |
| 9.1 | In the event of the Participant’s Involuntary Termination at or following a Change in Control, all Options held by the Participant, whether or not exercisable at such time, will become fully exercisable, subject to the expiration provisions otherwise applicable to the Option. |
| 9.2 | A “Change in Control” will be deemed to have occurred as provided in Section 4.2 of the Plan. |
| 10. | Adjustment Provisions. |
This Option, including the number of shares subject to the Option and the exercise price, will be adjusted upon the occurrence of the events specified in, and in accordance with the provisions of Section 3.4 of the Plan.
| 11. | Termination of Option and Accelerated Vesting. |
This Option will terminate upon the expiration date, except as set forth in the following provisions:
| (i) | Death. In the event of the Participant’s Termination of Service by reason of the Participant’s death, all Stock Options shall be exercisable as to all shares subject to this Option whether or not then exercisable at the date of Participant’s Termination of Service by reason of death. This Option may thereafter be exercised by the Participant’s legal representative or beneficiaries for a period of one (1) year from the date of death, subject to termination on the expiration date of this Option, if earlier. |
| (ii) | Disability. In the event of the Participant’s Termination of Service by reason of Disability, all Stock Options shall be exercisable as to all shares subject to this Option whether or not then exercisable at the date of Participant’s Termination of Service by reason of Disability. This Option may thereafter be exercised for a period of one (1) year from the date of such Termination of Service by reason of Disability, subject to termination on the Option’s expiration date, if earlier. |
| (iii) | Retirement. Unless otherwise determined by the Committee, in the event of the Participant’s Termination of Service by reason of the Participant’s Retirement, vested Options shall be exercisable for one (1) year following Termination of Service subject to termination on the Option’s expiration date, if earlier, provided that no Option shall be eligible for treatment as an ISO in the event such Option is exercised more than three (3) months following Termination of Service due to Retirement, and any Option that has not vested as of the date of Termination of Service shall expire and be forfeited. “Retirement” shall have the meaning set forth in Section 8.1(ee) of the Plan. |
| (iv) | Termination for Cause. If the Participant’s Service has been terminated for Cause, all Options that have not been exercised will expire and be forfeited. |
| (v) | Other Termination. If the Participant’s Service terminates for any reason other than due to death, Disability, Retirement, Involuntary Termination following a Change in Control or for Cause, this Option may thereafter be exercised, to the extent it was exercisable at the time of such termination, for a period of three (3) months following termination, subject to termination on the Option’s expiration date, if earlier. |
| 12. | Miscellaneous. |
| 12.1 | No Option will confer upon the Participant any rights as a stockholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights. |
| 12.2 | This Agreement may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Participant. |
| 12.3 | Except as otherwise provided by the Committee, ISOs under the Plan are not transferable except (1) as designated by the Participant by will or by the laws of descent and distribution, (2) to a trust established by the Participant, or (3) between spouses incident to a divorce or pursuant to a domestic relations order, provided, however, that in the case of a transfer described under (3), the Option will not qualify as an ISO as of the day of such transfer. |
| 12.4 | This Agreement will be governed by and construed in accordance with the laws of the State of New York. |
| 12.5 | This Agreement is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the Participant agrees that he will not exercise the Option granted hereby nor will the Company be obligated to issue any shares of stock hereunder if the exercise thereof or the issuance of such shares, as the case may be, would constitute a violation by the Participant or the Company of any such law, regulation or order or any provision thereof. |
| 12.6 | The granting of this Option does not confer upon the Participant any right to be retained in the employ of the Company or any subsidiary. |
[Signature Page to Follow]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the date of grant of this Option set forth above.
| CHEMUNG FINANCIAL CORPORATION | ||
| By: | ||
| Its: | ||
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing Option and agrees to the terms and conditions hereof, including the terms and provisions of the 2021 Equity Incentive Plan. The undersigned hereby acknowledges receipt of a copy of the Company’s 2021 Equity Incentive Plan.
| PARTICIPANT | |
EXHIBIT A
NOTICE OF EXERCISE OF OPTION
I hereby exercise the stock option (the “Option”) granted to me by Chemung Financial Corporation (the “Company”) or its affiliate, subject to all the terms and provisions set forth in the Stock Option Agreement (the “Agreement”) and the Chemung Financial Corporation 2021 Equity Incentive Plan (the “Plan”) referred to therein, and notify you of my desire to purchase __________________ shares of common stock of the Company (“Common Stock”) for a purchase price of $_______ per share.
I elect to pay the exercise price by:
| ___ | Cash or personal, certified or cashier’s check in the sum of $_______, in full/partial payment of the purchase price. |
| ___ | Stock of the Company with a fair market value of $______ in full/partial payment of the purchase price.* |
| ___ | A net settlement of the Option, using a portion of the shares obtained on exercise in payment of the exercise price of the Option (and, if applicable, any required tax withholding). |
| ___ | Selling ______ shares from my Option shares through a broker in full/partial payment of the purchase price. |
I understand that after this exercise, ____________ shares of Common Stock remain subject to the Option, subject to all terms and provisions set forth in the Agreement and the Plan.
I hereby represent that it is my intention to acquire these shares for the following purpose:
___ investment
___ resale or distribution
Please note: if your intention is to resell (or distribute within the meaning of Section 2(11) of the Securities Act of 1933) the shares you acquire through this Option exercise, the Company or transfer agent may require an opinion of counsel that such resale or distribution would not violate the Securities Act of 1933 prior to your exercise of such Option.
| Date: ____________, _____. | ||
| Participant’s signature |
* If I elect to exercise by exchanging shares I already own, I will constructively return shares that I already own to purchase the new option shares. If my shares are in certificate form, I must attach a separate statement indicating the certificate number of the shares I am treating as having exchanged. If the shares are held in “street name” by a registered broker, I must provide the Company with a notarized statement attesting to the number of shares owned that will be treated as having been exchanged. I will keep the shares that I already own and treat them as if they are shares acquired by the option exercise. In addition, I will receive additional shares equal to the difference between the shares I constructively exchange and the total new option shares that I acquire.
Exhibit 10.3
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
Stock Option
Granted by
CHEMUNG FINANCIAL CORPORATION
under the
CHEMUNG FINANCIAL CORPORATION
2021 EQUITY INCENTIVE PLAN
This stock option agreement (“Option” or “Agreement”) is and will be subject in every respect to the provisions of the 2021 Equity Incentive Plan (the “Plan”) of Chemung Financial Corporation (the “Company”) which are incorporated herein by reference and made a part hereof, subject to the provisions of this Agreement. A copy of the Plan has been provided, or made available, to each person granted a stock option pursuant to the Plan. The holder of this Option (the “Participant”) hereby accepts this Option, subject to all the terms and provisions of the Plan and this Agreement, and agrees that all decisions under and interpretations of the Plan and this Agreement by the Compensation Committee of the Board of Directors of the Company (“Committee”) will be final, binding and conclusive upon the Participant and the Participant’s heirs, legal representatives, successors and permitted assigns. Except where the context otherwise requires, the term “Company” will include the parent and all present and future subsidiaries of the Company as defined in Section 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”). Capitalized terms used herein but not defined will have the same meaning as in the Plan.
| 1. | Name of Participant. ______________________________________________________ |
| 2. | Date of Grant. _________, 20__ |
| 3. | Total number of shares of Company common stock, $0.01 par value per share, that may be acquired pursuant to this Option. ___________________________________________ | |
| (subject to adjustment pursuant to Section 10 hereof). |
| · | This is a Non-Qualified Option. |
| 4. | Exercise price per share. $ _______ | |
| (subject to adjustment pursuant to Section 10 below) |
| 5. | Expiration Date of Option. ________, 20__ |
| 6. | Vesting Schedule. Except as otherwise provided in this Agreement, this Option first becomes exercisable, subject to the Option’s expiration date, in accordance with the vesting schedule specified herein. |
The Options granted under this Agreement shall vest in ___ (__) equal annual installments, with the first installment becoming exercisable on the first anniversary of the date of grant, or _______, 20__, and succeeding installments on each anniversary thereafter, through ________, 20__. To the extent the Options awarded to me are not equally divisible by “__,” any excess Options shall vest on ________, 20__.
This Option may not be exercised at any time on or after the Option’s expiration date. Unless otherwise provided by action of the Committee in accordance with the Plan, this Option will vest pursuant to Section 2.8 of the Plan in the event of death, Disability and pursuant to Section 4.1 of the Plan in the event of Involuntary Termination following a Change in Control.
| 7. | Exercise Procedure. |
| 7.1 | Delivery of Notice of Exercise of Option. This Option will be exercised in whole or in part by the Participant’s delivery to the Company of written notice (the “Notice of Exercise of Option” attached hereto as Exhibit A) setting forth the number of shares with respect to which this Option is to be exercised, together with payment by cash or other means acceptable to the Committee, including: |
| · | Cash or personal, certified or cashier’s check in full/partial payment of the purchase price. |
| · | Stock of the Company in full/partial payment of the purchase price. |
| · | By a net settlement of the Option, using a portion of the shares obtained on exercise in payment of the exercise price of the Option (and, if applicable, any required tax withholding). |
| · | By selling shares from my Option shares through a broker in full/partial payment of the purchase price. |
| 7.2 | “Fair Market Value” shall have the meaning set forth in Section 8.1(r) of the Plan. |
| 8. | Delivery of Shares. |
| 8.1 | Delivery of Shares. Delivery of shares of Common Stock upon the exercise of this Option will comply with all applicable laws (including the requirements of the Securities Act) and the applicable requirements of any securities exchange or similar entity. |
| 9. | Change in Control. |
| 9.1 | In the event of the Participant’s Involuntary Termination at or following a Change in Control, all Options held by the Participant, whether or not exercisable at such time, will become fully exercisable, subject to the expiration provisions otherwise applicable to the Option. |
| 9.2 | A “Change in Control” will be deemed to have occurred as provided in Section 4.2 of the Plan. |
| 10. | Adjustment Provisions. |
This Option, including the number of shares subject to the Option and the exercise price, will be adjusted upon the occurrence of the events specified in, and in accordance with the provisions of Section 3.4 of the Plan.
| 11. | Termination of Option and Accelerated Vesting. |
This Option will terminate upon the expiration date, except as set forth in the following provisions:
| (i) | Death. In the event of the Participant’s Termination of Service by reason of the Participant’s death, all Stock Options shall be exercisable as to all shares subject to this Option whether or not then exercisable at the date of Participant’s Termination of Service by reason of death. This Option may thereafter be exercised by the Participant’s legal representative or beneficiaries for a period of one (1) year from the date of death, subject to termination on the expiration date of this Option, if earlier. |
| (ii) | Disability. In the event of the Participant’s Termination of Service by reason of Disability, all Stock Options shall be exercisable as to all shares subject to this Option whether or not then exercisable at the date of Participant’s Termination of Service by reason of Disability. This Option may thereafter be exercised for a period of one (1) year from the date of such Termination of Service by reason of Disability, subject to termination on the Option’s expiration date, if earlier. |
| (iii) | Retirement. Unless otherwise determined by the Committee, in the event of the Participant’s Termination of Service by reason of the Participant’s Retirement, vested Options shall be exercisable for one (1) year following Termination of Service subject to termination on the Option’s expiration date, if earlier, and any Option that has not vested as of the date of Termination of Service shall expire and be forfeited. “Retirement” shall have the meaning set forth in Section 8.1(ee) of the Plan. |
| (iv) | Termination for Cause. If the Participant’s Service has been terminated for Cause, all Options that have not been exercised will expire and be forfeited. |
| (v) | Other Termination. If the Participant’s Service terminates for any reason other than due to death, Disability, Retirement, Involuntary Termination following a Change in Control or for Cause, this Option may thereafter be exercised, to the extent it was exercisable at the time of such termination, for a period of three (3) months following termination, subject to termination on the Option’s expiration date, if earlier. |
| 12. | Miscellaneous. |
| 12.1 | No Option will confer upon the Participant any rights as a stockholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights. |
| 12.2 | This Agreement may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Participant. |
| 12.3 | In the discretion of the Committee, a non-qualified Option granted under the Plan may be transferable by the Participant, provided, however, that such transfers will be limited to Immediate Family Members of Participants, trusts and partnerships established for the primary benefit of such family members or to charitable organizations, and provided, further, that such transfers are not made for consideration to the Participant. |
| 12.4 | This Agreement will be governed by and construed in accordance with the laws of the State of New York. |
| 12.5 | This Agreement is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the Participant agrees that he or she will not exercise the Option granted hereby nor will the Company be obligated to issue any shares of stock hereunder if the exercise thereof or the issuance of such shares, as the case may be, would constitute a violation by the Participant or the Company of any such law, regulation or order or any provision thereof. |
| 12.6 | The granting of this Option does not confer upon the Participant any right to be retained in the service of the Company or any subsidiary. |
[Signature Page to Follow]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the date of grant of this Option set forth above.
| CHEMUNG FINANCIAL CORPORATION | ||
| By: | ||
| Its: | ||
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing Option and agrees to the terms and conditions hereof, including the terms and provisions of the 2021 Equity Incentive Plan. The undersigned hereby acknowledges receipt of a copy of the Company’s 2021 Equity Incentive Plan.
| PARTICIPANT | |
EXHIBIT A
NOTICE OF EXERCISE OF OPTION
I hereby exercise the stock option (the “Option”) granted to me by Chemung Financial Corporation (the “Company”) or its affiliate, subject to all the terms and provisions set forth in the Stock Option Agreement (the “Agreement”) and the Chemung Financial Corporation 2021 Equity Incentive Plan (the “Plan”) referred to therein, and notify you of my desire to purchase __________________ shares of common stock of the Company (“Common Stock”) for a purchase price of $______ per share.
I elect to pay the exercise price by:
| ___ | Cash or personal, certified or cashier’s check in the sum of $_______, in full/partial payment of the purchase price. |
| ___ | Stock of the Company with a fair market value of $______ in full/partial payment of the purchase price.* |
| ___ | A net settlement of the Option, using a portion of the shares obtained on exercise in payment of the exercise price of the Option (and, if applicable, any required tax withholding). |
| ___ | Selling ______ shares from my Option shares through a broker in full/partial payment of the purchase price. |
I understand that after this exercise, ____________ shares of Common Stock remain subject to the Option, subject to all terms and provisions set forth in the Agreement and the Plan.
I hereby represent that it is my intention to acquire these shares for the following purpose:
___ investment
___ resale or distribution
Please note: if your intention is to resell (or distribute within the meaning of Section 2(11) of the Securities Act of 1933) the shares you acquire through this Option exercise, the Company or transfer agent may require an opinion of counsel that such resale or distribution would not violate the Securities Act of 1933 prior to your exercise of such Option.
| Date: ____________, _____. | ||
| Participant’s signature |
* If I elect to exercise by exchanging shares I already own, I will constructively return shares that I already own to purchase the new option shares. If my shares are in certificate form, I must attach a separate statement indicating the certificate number of the shares I am treating as having exchanged. If the shares are held in “street name” by a registered broker, I must provide the Company with a notarized statement attesting to the number of shares owned that will be treated as having been exchanged. I will keep the shares that I already own and treat them as if they are shares acquired by the option exercise. In addition, I will receive additional shares equal to the difference between the shares I constructively exchange and the total new option shares that I acquire.
Exhibit 10.4
Restricted Stock Award
Granted by
CHEMUNG FINANCIAL CORPORATION
under the
CHEMUNG FINANCIAL CORPORATION
2021 EQUITY INCENTIVE PLAN
This restricted stock agreement (“Restricted Stock Award” or “Agreement”) is and will be subject in every respect to the provisions of the 2021 Equity Incentive Plan (the “Plan”) of Chemung Financial Corporation (the “Company”) which are incorporated herein by reference and made a part hereof, subject to the provisions of this Agreement. A copy of the Plan has been provided or made available to each person granted a Restricted Stock Award pursuant to the Plan. The holder of this Restricted Stock Award (the “Participant”) hereby accepts this Restricted Stock Award, subject to all the terms and provisions of the Plan and this Agreement, and agrees that all decisions under and interpretations of the Plan and this Agreement by the Compensation Committee of the Board of Directors of the Company (“Committee”) will be final, binding and conclusive upon the Participant and the Participant’s heirs, legal representatives, successors and permitted assigns. Except where the context otherwise requires, the term “Company” will include the parent and all present and future subsidiaries of the Company as defined in Section 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”). Capitalized terms used herein but not defined will have the same meaning as in the Plan.
| 1. | Name of Participant.______________________________________________________ |
| 2. | Date of Grant. _________, 20__. |
| 3. | Total number of shares of Company common stock, $0.01 par value per share, covered by the Restricted Stock Award. ___________________________________________ | |
| (subject to adjustment pursuant to Section 9 hereof). |
| 4. | Vesting Schedule. Except as otherwise provided in this Agreement, this Restricted Stock Award first becomes earned in accordance with the vesting schedule specified herein. |
The Restricted Stock granted under this Agreement shall vest in ___ (__) equal annual installments, with the first installment becoming exercisable on the first anniversary of the date of grant, or _______, 20__, and succeeding installments on each anniversary thereafter, through ________, 20__. To the extent the Restricted Stock Awards awarded to me are not equally divisible by “__,” any excess Restricted Stock Awards shall vest on ________, 20__.
Unless otherwise provided by action of the Committee in accordance with the Plan, the Restricted Stock Award will vest pursuant to Section 2.8 of the Plan in the event of death, Disability and pursuant to Section 4.1 of the Plan in the event of Involuntary Termination following a Change in Control.
| 5. | Grant of Restricted Stock Award. |
The Restricted Stock Award will be in the form of issued and outstanding shares of Stock that will be either registered in the name of the Participant and held by the Company, together with a stock power executed by the Participant in favor of the Company, pending the vesting or forfeiture of the Restricted Stock, or registered in the name of, and delivered to, the Participant. Notwithstanding the foregoing, the Company may in its sole discretion, issue Restricted Stock in any other format (e.g., electronically) in order to facilitate the paperless transfer of such Awards.
If certificated, the certificates evidencing the Restricted Stock Award will bear a legend restricting the transferability of the Restricted Stock. The Restricted Stock awarded to the Participant will not be sold, encumbered hypothecated or otherwise transferred except in accordance with the terms of the Plan and this Agreement.
| 6. | Terms and Conditions. |
| 6.1 | The Participant will have the right to vote the shares of Restricted Stock awarded hereunder on matters which require stockholder vote. |
| 6.2 | Any cash dividends or distributions declared with respect to shares of Stock subject to the Restricted Stock Award will be distributed to the Participant immediately. |
| 7. | Delivery of Shares. |
Delivery of shares of Stock under this Restricted Stock Award will comply with all applicable laws (including, the requirements of the Securities Act), and the applicable requirements of any securities exchange or similar entity.
| 8. | Change in Control. |
| 8.1 | In the event of the Participant’s Involuntary Termination following a Change in Control, all Restricted Stock Awards held by the Participant will become fully vested. |
| 8.2 | A “Change in Control” will be deemed to have occurred as provided in Section 4.2 of the Plan. |
| 9. | Adjustment Provisions. |
This Restricted Stock Award, including the number of shares subject to the Restricted Stock Award, will be adjusted upon the occurrence of the events specified in, and in accordance with the provisions of, Section 3.4 of the Plan.
| 10. | Effect of Termination of Service on Restricted Stock Award. |
| 10.1 | This Restricted Stock Award will vest as follows: |
| (i) | Death. In the event of the Participant’s Termination of Service by reason of the Participant’s death, all Restricted Stock shall vest as to all shares subject to this Restricted Stock Award, whether or not otherwise immediately vested, at the date of Participant’s Termination of Service by reason of death. |
| (ii) | Disability. In the event of the Participant’s Termination of Service by reason of Disability, all Restricted Stock shall vest as to all shares subject to this Restricted Stock Award, whether or not otherwise immediately vested, at the date of Participant’s Termination of Service by reason of Disability. |
| (iii) | Retirement. Unless otherwise determined by the Committee, in the event of the Participant’s Termination of Service by reason of the Participant’s Retirement, Restricted Stock that has not vested as of the date of Termination of Service shall expire and be forfeited as of the date of Participant’s Termination of Service by reason of Retirement. “Retirement” shall have the meaning set forth in Section 8.1(ee) of the Plan. |
| (iv) | Termination for Cause. If the Participant’s Service has been terminated for Cause, all Restricted Stock granted to a Participant that has not vested will expire and be forfeited. |
| (v) | Other Termination. If a Participant terminates Service for any reason other than due to death, Disability, Retirement, Involuntary Termination following a Change in Control or for Cause, all shares of Restricted Stock awarded to the Participant which have not vested as of the date of Termination of Service will expire and be forfeited. |
| 11. | Miscellaneous. |
| 11.1 | No Restricted Stock Award will confer upon the Participant any rights as a stockholder of the Company, other than provided herein, prior to the date on which the individual fulfills all conditions for receipt of such rights. |
| 11.2 | This Agreement may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Participant. |
| 11.3 | Restricted Stock Awards are not transferable prior to the time such Awards vest in the Participant. |
| 11.4 | This Restricted Stock Award will be governed by and construed in accordance with the laws of the State of New York. |
| 11.5 | This Restricted Stock Award is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the Company will not be obligated to issue any shares of stock hereunder if the issuance of such shares would constitute a violation of any such law, regulation or order or any provision thereof. |
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the date of grant of this Restricted Stock Award set forth above.
| CHEMUNG FINANCIAL CORPORATION | ||
| By: | ||
| Its: | ||
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing Restricted Stock Award and agrees to the terms and conditions hereof, including the terms and provisions of the 2021 Equity Incentive Plan. The undersigned hereby acknowledges receipt of a copy of the Company’s 2021 Equity Incentive Plan.
| PARTICIPANT | |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Chemung Financial Corporation of our report dated March 24, 2021 relating to the consolidated financial statements appearing in the Annual Report on Form 10-K of Chemung Financial Corporation for the year ended December 31, 2020.
/s/ Crowe LLP
Livingston, New Jersey
June 21, 2021