As filed with the Securities and Exchange Commission on April 26, 2005
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Delaware 23-3016517
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
405 Silverside Road, Wilmington, DE 19809
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(Address of Principal Executive Offices) (Zip Code)
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Copy to:
J. Baur Whittlesey, Esquire
Ledgewood
1521 Locust Street - Eighth Floor
Philadelphia, PA 19102
(215) 731-9450
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
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Common Stock, par value $1.00 per
share 1,000,000 $13.89 $13,890,000 $1,634.85
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(2) Estimated solely for purposes of determining the registration fee in accordance with Rule 457(h) under the Securities Act of 1933 based upon the average of the high and low sales prices of the registrant's common stock as reported on the Nasdaq National Market on April 21, 2005.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with the Explanatory Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with the Explanatory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the registrant filed with the SEC are incorporated by reference in this registration statement:
o Annual Report on Form 10-K for the fiscal year ended December 31, 2004 filed on March 31, 2005.
o Current Report on Form 8-K filed on January 6, 2005.
o Current Report on Form 8-K/A filed on March 9, 2005.
o Current Report on Form 8-K filed on April 22, 2005.
o The description of registrant's common stock contained in the Registration Statement on Form 8-A filed on November 10, 2004.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered pursuant to this registration statement
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the provisions of Section 145 of the Delaware General Corporation Law, the registrant is required to indemnify any present or former officer or director against expenses arising out of legal proceedings in which the director or officer becomes involved by reason of being a director or officer if the director or officer is successful in the defense of such proceedings. Section 145 also provides that the registrant may indemnify a director or officer in connection with a proceeding in which he is not successful in defending if it is determined that he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the registrant or, in the case of a criminal action, if it is determined that he had no reasonable cause to believe his conduct was unlawful. Liabilities for which a director or officer may be indemnified include amounts paid in satisfaction of settlements, judgments, fines and other expenses (including attorneys' fees incurred in connection with such proceedings).
The registrant's Certificate of Incorporation provides for indemnification of directors and officers of the registrant to the full extent permitted by applicable law. Under the provisions of the registrant's Bylaws, the registrant is required to indemnify officers or directors to the same extent as under the current provisions of Section 145 of the Delaware General Corporation Law.
The foregoing standards also apply with respect to the indemnification of expenses incurred in a stockholder derivative suit. However, a director or officer may only be indemnified for settlement amounts or judgments incurred in a derivative suit to the extent that the Court of Chancery or the court in which such action or suit 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 of Chancery or such other court shall deem proper.
In accordance with the Delaware General Corporation Law, the registrant's Certificate of Incorporation contains a provision to limit the personal liability of the directors of the registrant for violations of their fiduciary duty. This provision eliminates each director's liability to the registrant or its stockholders for monetary damages except (i) for breach of the director's duty of loyalty to the registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions or (iv) for any transaction from which a director derived an improper personal benefit. The effect of this provision is to eliminate the personal liability of directors for monetary damages for actions involving a breach of their fiduciary duty.
The registrant maintains directors' and officers' liability insurance against any actual or alleged error, misstatement, misleading statement, act, omission, neglect or breach of duty by any director or officer of itself or any direct or indirect subsidiary, excluding certain matters including fraudulent, dishonest or criminal acts or self-dealing.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits furnished as part of this registration statement on Form S-8 are identified in the Exhibit Index immediately following the signature pages of this registration statement. Such Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
Undertakings required by Item 512(a) of Regulation S-K
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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
Undertakings required by Item 512(b) of Regulation S-K
The undersigned registrant hereby undertakes 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 (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 the initial bona fide offering thereof.
Undertakings required by Item 512(h) of Regulation S-K
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for 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 SEC 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington, State of Delaware, on April 26, 2005.
THE BANCORP, INC.
By: /s/ Betsy Z. Cohen
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Betsy Z. Cohen
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Betsy Z. Cohen, Frank M. Mastrangelo and Martin F. Egan, or any of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or of his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
/s/ Betsy Z. Cohen Date: April 26, 2005 ---------------------------------------------------------- BETSY Z. COHEN, Chief Executive Officer and Director (principal executive officer) /s/ Frank M. Mastrangelo Date: April 26, 2005 ---------------------------------------------------------- FRANK M. MASTRANGELO, President, Chief Operating Officer and Director /s/ Martin F. Egan Date: April 26, 2005 ---------------------------------------------------------- MARTIN F. EGAN, Senior Vice President, Chief Financial Officer and Secretary (principal financial and accounting officer) /s/ D. Gideon Cohen Date: April 26, 2005 ---------------------------------------------------------- D. GIDEON COHEN, Chairman of the Board of Directors, Chairman of the Executive Committee /s/ Walter T. Beach Date: April 26, 2005 ---------------------------------------------------------- WALTER T. BEACH, Director |
/s/ Matthew Cohn Date: April 26, 2005 ---------------------------------------------------------- MATTHEW COHN, Director /s/ Linda Schaeffer Date: April 26, 2005 ---------------------------------------------------------- LINDA SCHAEFFER, Director /s/ William H. Lamb Date: April 26, 2005 ---------------------------------------------------------- WILLIAM H. LAMB, Director /s/ James J. McEntee III Date: April 26, 2005 ---------------------------------------------------------- JAMES J. MC ENTEE III, Director /s/ Joan Specter Date: April 26, 2005 ---------------------------------------------------------- JOAN SPECTER, Director /s/ Steven Stein Date: April 26, 2005 ---------------------------------------------------------- STEVEN STEIN, Director /s/ Leon A. Huff Date: April 26, 2005 ---------------------------------------------------------- LEON A. HUFF, Director /s/ Michael J. Bradley Date: April 26, 2005 ---------------------------------------------------------- MICHAEL J. BRADLEY, Director |
EXHIBIT INDEX
The following exhibits are filed herewith:
EXHIBIT DOCUMENT
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4.1(1) Certificate of Incorporation of Registrant
4.2(1) Bylaws of Registrant
4.3(2) Specimen copy of Common Stock Certificate
4.4 1999 Stock Option Plan (as amended through
June 18, 2003)
4.5 Form of Grant of Non-Qualified Stock Options
4.6 Form of Grant of Incentive Stock Options
5.1 Opinion of Ledgewood, a professional corporation, as
to the legality of the securities to be offered
23.1 Consent of Grant Thornton LLP
23.2 Consent of Ledgewood, a professional corporation
(included as part of Exhibit 5.1)
24.1 Power of Attorney (included as part of signature page)
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(1) Filed previously as an exhibit to registrant's Registration Statement on Form S-4 dated July 15, 2004 and by this reference incorporated herein.
(2) Filed previously as an exhibit to registrant's Registration Statement on Form S-4/A dated September 28, 2004 and by this reference incorporated herein.
Exhibit 4.4
THE BANCORP.COM, INC.
1999 STOCK OPTION PLAN
(as amended through June 18, 2003)
This 1999 Stock Option Plan of The Bancorp.com, Inc. was adopted by the Company's Board of Directors on December 15, 1999.
1. DEFINITIONS
1.1. "ADMINISTRATOR" means the Committee.
1.2. "AFFILIATE" means any "subsidiary" or "parent" corporation (within the meaning of Section 424 of the Code) of the Company.
1.3. "AGREEMENT" means a written agreement (including any amendment or supplement thereto) between the Company and a Participant specifying the terms and conditions of an award of Options granted to such Participant.
1.4. "BANK" means TB.com Bank.
1.5. "BOARD" means the Board of Directors of the Company.
1.6. "CODE" means the United States Internal Revenue Code of 1986, as amended.
1.7. "COMMITTEE" means the Compensation Committee of the Board.
1.8. "COMMON STOCK" means the common stock of the Company.
1.9. "COMPANY" means The Bancorp.com, Inc.
1.10. "FAIR MARKET VALUE" means, if the shares of Common Stock are then listed and traded on a registered national or regional securities exchange, or quoted on The National Association of Securities Dealers' Automated Quotation System (including The Nasdaq National Market), the average closing price of a share of Common Stock on such exchange or quotation system for the five trading days immediately preceding the date of grant of an Option, or, if Fair Market Value is used herein in connection with any event other than the grant of an Option, then such average closing price for the five trading days immediately preceding the date of such event. If the shares of Common Stock are not traded on a registered securities exchange or quoted in such a quotation system, the Committee shall determine the Fair Market Value of a share.
1.11. "OPTION" means a stock option that entitles the holder to purchase from the Company a stated number of shares of Common Stock at the price set forth in an Agreement.
1.12. "PARTICIPANT" means an employee of the Company, an Affiliate or a member of the Board, who satisfies the requirements of Article 4 and is selected by the Administrator to receive an Option.
1.13. "PLAN" means this 1999 Stock Option Plan.
1.14. "TEN PERCENT SHAREHOLDER" means any individual owning more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of an Affiliate. An individual shall be considered to own any voting stock owned (directly or indirectly) by or for such individual's brothers, sisters, spouses, ancestors or lineal descendants and shall be considered to own proportionately any voting stock owned (directly or indirectly) by or for a corporation, partnership, estate or trust of which such individual is a shareholder, partner or beneficiary.
2. PURPOSES
The Plan is intended to assist the Company and its Affiliates in recruiting and retaining individuals with ability and initiative by enabling such persons to participate in the future success of the Company and its shareholders. The Plan is intended to permit the grant of both Options qualifying under Section 422 of the Code ("incentive stock options") and Options not so qualifying, and the grant of Performance Shares. No Option that is intended to be an incentive stock option shall be invalid for failure to qualify as an incentive stock option. The proceeds received by the Company from the sale of Common Stock pursuant to this Plan shall be used for general corporate purposes.
3. ADMINISTRATION
The Plan shall be administered by the Administrator in a manner consistent with the express language and intent of the Plan and in a manner consistent with the intent of the Federal Deposit Insurance Corporation's ("FDIC") Statement of Policy on Applications for Deposit Insurance. The Administrator shall have authority to grant Options upon such terms which are consistent with the provisions of this Plan. Such terms may include conditions (in addition to those contained in this Plan) on the vesting or exercisability of all or any part of an Option or on the transferability or forfeitability of any award. In addition, the Administrator shall have complete authority to interpret all provisions of this Plan; to prescribe the form of Agreements; to adopt, amend, and rescind rules and regulations pertaining to the administration of the Plan; to redesignate Options granted as incentive stock options as non-statutory stock options and to make all other determinations necessary or advisable for the administration of this Plan. The express grant in the Plan of any specific power to the Administrator shall not be construed as limiting any power or authority of the Administrator. Any decision made, or action taken, by the Administrator or in connection with the administration of this Plan shall be final and conclusive. Neither the Administrator nor any member of the Committee shall be liable for any act done in good faith with respect to this Plan or any Agreement or award. All expense of administering this Plan shall be borne by the Company.
4. ELIGIBILITY
Any employee of the Company or an Affiliate (including a corporation that becomes an Affiliate after the adoption of this Plan) is eligible to participate in this Plan, if the Administrator determines that such person has or can be expected to contribute significantly to the growth or profitability of the Company or an Affiliate. Members of the Board are also eligible to participate in this Plan.
5. STOCK SUBJECT TO PLAN
5.1. Shares Issued. Upon the exercise of an Option, the Company may deliver to the Participant shares of Common Stock from its authorized but unissued Common Stock.
5.2. Aggregate Limit. The maximum aggregate number of shares of Common Stock that may be issued under this Plan is 1,000,000 shares, subject to adjustment as provided in Article 8. No more than 75,000 shares shall be issued to non-employee directors of the Company.
5.3. Reallocation of Shares. If an Option is terminated, in whole or in part, for any reason other than its exercise, the number of shares of Common Stock allocated to the Option or portion thereof may be reallocated to other awards to be granted under this Plan.
6. OPTIONS
6.1. Award. The Administrator will designate each individual to whom an Option is to be granted and will specify the number of shares of Common Stock covered by such award.
6.2. Option Price. The price per share for Common Stock purchased on the exercise of an Option shall be determined by the Administrator on the date of grant; provided, however, that the price per share for Common Stock purchased on the exercise of any Option shall not be less than the Fair Market Value on the date of grant Notwithstanding the preceding sentence, the price per share for Common Stock purchased on the exercise of any Option that is an incentive stock option shall not be less than the Fair Market Value on the date the Option is granted or, in the case of an incentive stock option granted to an individual who is a Ten Percent Shareholder on the date such option is granted, shall not be less than one hundred ten percent (110%) of the Fair Market Value on the date the Option is granted.
6.3. Maximum Option Period. The maximum period in which an Option may be exercised shall be determined by the Administrator on the date of grant, except that no Option that is an incentive stock option shall be exercisable after the expiration of ten years from the date such Option was granted. In the case of an incentive stock option that is granted to a Participant who is a Ten Percent Shareholder on the date of grant, such option shall not be exercisable after the expiration of five years from the date of grant. The terms of any Option that is an incentive stock option may provide that it is exercisable for a period less than such maximum period.
6.4. Nontransferability. Except as provided in Section 6.5, each Option granted under this Plan shall be nontransferable except by will or by the laws of descent and distribution. During the lifetime of the Participant to whom the Option is granted, the Option may be exercised only by the Participant. No right or interest of a Participant in any Option shall be liable for, or subject to, any lien, obligation, or liability of such Participant.
6.5. Employee Status. For purposes of determining the applicability of
Section 422 of the Code (relating to incentive stock options), or in the event
that the terms of any Option provide that it may be exercised only during
employment or within a specified period of time after termination of employment,
the Administrator may decide to what extent leaves of absence for governmental
or military service, illness, temporary disability, or other reasons shall not
be deemed interruptions of continuous employment.
6.6. Exercise.
6.6.1. Installment Exercise.
Subject to such further limitations as are provided herein, the Option shall become exercisable in four (4) installments, the Participant having the right hereunder to purchase from the Company the following number of Options upon exercise of the Option, on and after the following dates, in cumulative fashion:
(i) on and after the first anniversary of the date of grant, up to 25% (ignoring fractional shares) of the total number of Options;
(ii) on and after the second anniversary of the date of grant, up to an additional 25% (ignoring fractional shares) of the total number of Options; and
(iii) on and after the third anniversary of the date of grant, up to an additional 25% (ignoring fractional shares) of the total number of Options; and
(iv) on and after the fourth anniversary of the date of grant, the remaining Options.
6.6.2. Termination of Option.
(a)(i) Upon the termination of Participant's employment by the Company for any reason, the Options, to the extent not previously exercised, shall immediately terminate and become null and void, except to the extent provided in paragraph (ii) of this subsection (a) where the termination of the Participant's employment is by reason of retirement, permanent disability or death.
(ii) Upon a termination of the Participant's employment by reason of retirement, disability or death, the Options may be exercised during the following periods but only to the extent the Options were outstanding and exercisable upon such termination of the Participant's employment: (A) the six-month period following the date of such termination of the Participant's employment; (B) the one year period following the date of death, in the case of Participant's death during his employment by the Company; and (C) the three-month period following the date of such termination in the case of retirement on or after the attainment of age 65, or in the case of permanent disability.
(b) In the event of the death, the Options may be exercised by the Participant's legal representative(s), but only to the extent that the Options would otherwise have been exercisable by the Participant.
(c) Notwithstanding any other provisions set forth
herein or in the Plan, if the Participant shall (i) commit any act of
malfeasance or wrongdoing affecting the Company or any subsidiary of Company,
(ii) breach any covenant not to compete, or employment contract, with Company
or any subsidiary of Company, or (iii) engage in conduct that would warrant the
Participant's discharge for cause (excluding general dissatisfaction with the
performance of the Participant's duties, but including any act of disloyalty or
any conduct clearly tending to bring discredit upon the Company or any
subsidiary of the Company), any unexercised portion of the Options shall
immediately terminate and become null and void.
(d) During the period of twelve (12) months immediately following the date upon which the Grantee receives a "hardship" withdrawal from a retirement plan qualifying under ss.401(k) of the Code, all rights of the Participant to exercise the Options shall be suspended.
6.6.3. Subject to the provisions of this Plan and the applicable Agreement, an Option may be exercised in whole at any time or in part from time to time at such times and in compliance with such requirements as the Administrator shall determine; provided, however, that incentive stock options (granted under the Plan and all plans of the Company and its Affiliates) may not be first exercisable in a calendar year for stock having a Fair Market Value (determined as of the date an Option is granted) exceeding $100,000. To the extent an Award of an incentive stock option exceeds this $100,000 limit, the portion of the Award in excess of such limit shall be deemed a non-statutory stock option. An Option granted under this Plan may be exercised with respect to any number of whole shares less than the full number for which the Option could be exercised. A partial exercise of an Option shall not affect the right to exercise the Option from time to time in accordance with this Plan and the applicable Agreement with respect to the remaining shares subject to the Option.
6.7. Payment. Unless otherwise provided by the Agreement, payment of the Option price shall be made in cash or a cash equivalent acceptable to the Administrator.
6.8. Shareholder Rights. No Participant shall have any rights as a shareholder with respect to shares subject to the Participant's Option until the date of exercise of such Option.
6.9. Disposition of Stock. A Participant shall notify the Company of any sale or other disposition of Common Stock acquired pursuant to an Option that was an incentive stock option if such sale or disposition occurs (i) within two years of the grant of an Option or (ii) within one year of the issuance of the Common Stock to the Participant. Such notice shall be in writing and directed to the Secretary of the Company.
6.10. Payment of Taxes. Unless the Administrator permits otherwise, the Participant shall pay the Company in cash, promptly when the amount of such obligations becomes determinable, all applicable local, state and federal withholding taxes applicable, in the Administrator's absolute discretion, to (i) the exercise of any Option or (ii) the transfer or other disposition of shares of Common Stock acquired upon exercise of any Option.
7. ADJUSTMENT UPON CHANGE IN COMMON STOCK
7.1. Adjustments. The maximum number of shares as to which awards may
be granted under this Plan, the terms of outstanding awards and the per
individual limitations on the number of shares for which Options and Performance
Shares may be granted, shall be adjusted as the Committee shall determine to be
equitably required in the event that (a) the Company (i) effects one or more
stock dividends, stock split-ups, subdivisions or consolidations of shares or
(ii) engages in a transaction to which Section 424 of the Code applies or (b)
there occurs any other event which, in the judgment of the Committee,
necessitates such action. Any determination made under this Article 8 by the
Committee shall be final and conclusive.
The issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the maximum number of shares as to which awards may be granted, the per individual limitations on the number of shares for which Options and Performance Shares may be granted or the terms of outstanding awards.
7.2. Mergers or Other Corporate Transactions. Upon consummation of a consolidation or merger or sale of all or substantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of an unrelated corporation or business entity or in the event of a liquidation of the Company (in each case, a "TRANSACTION"), the Board, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding Options: (i) provide that such Options shall be assumed or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to the optionees, provide that all unexercised Options will terminate immediately prior to the consummation of the Transaction unless exercised by the optionee within a specified period following the date of such notice, and/or (iii) in the event of a business combination under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the business combination, make or provide for a cash payment to the optionees equal to the difference between (A) the value (as determined by the Committee) of the consideration payable per share of Common Stock pursuant to the business combination (the "MERGER PRICE") times the number of shares of Common Stock subject to such outstanding Options (to the extent then exercisable at prices not in excess of the Merger Price) and (B) the aggregate exercise price of all such outstanding Options in exchange for the termination of such Options. In the event Options will terminate upon the consummation of the Transaction, each optionee shall be permitted, within a specified period determined by the Committee, to exercise all non-vested Options, subject to the consummation of the Transaction.
8. COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
8.1. No Option shall be exercisable, no Common Stock shall be issued, no certificates for shares of Common Stock shall be delivered, and no payment shall be made under this Plan except in compliance with all applicable federal and state laws and regulations (including, without limitation, withholding tax requirements), any listing agreement to which the Company is a party, and the rules of all domestic stock exchanges on which the Company's shares may be listed. The Company shall have the right to rely on an opinion of its counsel as to such compliance. Any share certificate issued to evidence Common Stock for which an Option is exercised or a Performance Share settled may bear such legends and statements as the Administrator may deem advisable to assure compliance with federal and state laws and regulations. No Option shall be exercisable, no Common Stock shall be issued, no certificate for shares shall be delivered, and no payment shall be made under this Plan until the Company has obtained such consent or approval as the Administrator may deem advisable from regulatory bodies having jurisdiction over such matters.
8.2. Every Option shall contain a provision that the Federal Reserve Board or the FDIC, individually or in conjunction with one other, may require Plan Participants to exercise or forfeit their Options if the Company or the Bank's capital falls below minimum requirements, as determined by federal or state regulators.
9. GENERAL PROVISIONS
9.1. Effect on Employment and Service. Neither the adoption of this Plan, its operation, nor any documents describing or referring to this Plan (or any part thereof) shall confer upon any individual any right to continue in the employ or service of the Company or an Affiliate or in any way affect any right and power of the Company or an Affiliate to terminate the employment or service of any individual at any time with or without assigning a reason therefor.
9.2. Unfunded Plan. The Plan, insofar as it provides for grants, shall be unfunded, and the Company shall not be required to segregate any assets that may at any time be represented by grants under this Plan. Any liability of the Company to any person with respect to any grant under this Plan shall be based solely upon any contractual obligations that may be created pursuant to this Plan. No such obligation of the Company shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Company.
9.3. Rules of Construction. Headings are given to the articles and sections of this Plan solely as a convenience to facilitate reference. The reference to any statute, regulation, or other provision of law shall be construed to refer to any amendment to or successor of such provision of law.
9.4. Governing Law. The Plan shall be administered in accordance with the laws of the State of Delaware and applicable federal law.
9.5. Effective Date of Plan. The Plan shall be effective upon its adoption by the Board and its approval by the Company's shareholders. Any Options or Performance Shares awarded under the Plan prior to the date of approval by the shareholders shall be void if such approval is not obtained within one year of the approval of the Board.
9.6. Duration of Plan. Options may be granted under the Plan at any time on or prior to the date which is ten years after the date the Plan is adopted by the Board.
10. AMENDMENT
The Board may amend or terminate this Plan from time to time; provided, however, that no amendment may become effective until shareholder approval is obtained if (i) the amendment increases the aggregate number of shares of Common Stock that may be issued under the Plan, (ii) the amendment changes the class of individuals eligible to become Participants or (iii) the amendment materially increases the benefits that may be provided under the Plan. No amendment shall, without a Participant's consent, adversely affect any rights of such Participant under any award outstanding at the time such amendment is made.
Exhibit 4.5
THIS Agreement is made as of the ______ day of _____, _____ (the "DATE OF GRANT") by and between _____________ ("GRANTEE") and THE BANCORP, INC. (together with its successors and assigns, the "COMPANY").
WHEREAS, the Company's 1999 Option Plan (as amended, the "PLAN") provides for the granting of stock options by the compensation committee (the "COMMITTEE") of the Board of Directors of the Company (the "BOARD OF DIRECTORS") to employees, members of the Board of Directors and certain other persons to purchase shares of common stock of the Company (the "SHARES"), in accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers Grantee to be a person who is eligible for a grant of stock options under the Plan, and has determined that it would be in the best interest of the Company to grant the stock options on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions hereinafter set forth, the Company, with the approval and at the direction of the Committee, hereby grants to Grantee, an option to purchase up to ______ Shares at a price of $_____ per Share. Such option is hereinafter referred to as the "OPTION" and the Shares purchasable upon exercise of the Option are hereinafter sometimes referred to as the "OPTION SHARES."
2. INSTALLMENT EXERCISE
Subject to such further limitations as are provided herein, the Option shall become exercisable in 4 installments, Grantee having the right hereunder to purchase from the Company the following number of Option Shares upon exercise of the Option, on and after the following dates, in cumulative fashion:
(i) on and after the first anniversary of the Date of Grant, up to 25% (ignoring fractional shares) of the total number of Option Shares;
(ii) on and after the second anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares;
(iii) on and after the third anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares; and
(iv) on the fourth anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares.
3. TERMINATION OF OPTION
(a) The Option and all rights hereunder with respect thereto, to the extent such rights shall not have been exercised, shall terminate and become null and void after the expiration of 10 years from the Date of Grant (the "OPTION TERM").
(b) Upon the termination of Grantee's service on the Board of Directors or employment for any reason, the Options may be exercised during the following periods but only to the extent the Options were outstanding and exercisable upon such termination of the Grantee's service or employment: (A) the 6-month period following the date of such termination; (B) the one year period following the date of death, in the case of Grantee's death during Grantee's service to or employment by the Company; and (C) the 3-month period following the date of such termination in the case of retirement on or after the attainment of age 65, or in the case of permanent disability. In no event, however, shall any such period extend beyond the Option Term.
(c) In the event of the death of Grantee, the Option may be exercised by Grantee's legal representative(s), but only to the extent that the Option would otherwise have been exercisable by Grantee.
(d) Notwithstanding any other provisions set forth herein or in the Plan, if Grantee shall (i) commit any act of malfeasance or wrongdoing affecting the Company or any subsidiary of Company, (ii) breach any covenant not to compete, or employment contract, with Company or any subsidiary of Company, or (iii) engage in conduct that would warrant Grantee's discharge for cause (excluding general dissatisfaction with the performance of Grantee's duties, but including any act of disloyalty or any conduct clearly tending to bring discredit upon the Company or any subsidiary of the Company), any unexercised portion of the Option shall immediately terminate and become null and void.
(e) During the period of 12 months immediately following the date upon which Grantee receives a "hardship" withdrawal from a retirement plan qualifying under ss.401(k) of the Code, all rights of Grantee to exercise the Option shall be suspended.
(f) Notwithstanding any other provision set forth herein, the Federal Reserve Board or the Federal Deposit Insurance Corporation ("FDIC"), individually or in conjunction with the other, may require Grantee to exercise or forfeit the Option if the capital of either the Company or The Bancorp Bank falls below minimum requirements, as determined by federal or state regulators.
4. EXERCISE OF OPTION; DISPOSITION OF SHARES
(a) Grantee may exercise the Option with respect to all or any part of the number of Option Shares granted hereunder by giving the Secretary of the Company written notice of intent to exercise, in the form attached hereto (the "NOTICE OF EXERCISE"). The Notice of Exercise shall specify the number of Option Shares as to which the Option is to be exercised and the date of exercise thereof, which date shall be at least 5 days after the giving of such notice unless an earlier time shall have been mutually agreed upon.
(b) Full payment (in U.S. dollars) by Grantee of the option price for the Option Shares purchased shall be made on or before the exercise date specified in the Notice of Exercise in cash, or, in whole or in part through the surrender of previously acquired Shares (which Grantee has held for at least 6 months prior to the Notice of Exercise or has purchased on the open market and for which Grantee has good title, free and clear of all liens and encumbrances) at their fair market value on the exercise date.
On the exercise date specified in the Notice of Exercise or as soon thereafter as is practicable, the Company shall cause to be delivered to Grantee a certificate or certificates for the Option Shares then being purchased (out of theretofore unissued Shares or reacquired Shares, as the Company may elect) upon full payment for such Option Shares. The obligation of the Company to deliver the Option Shares shall, however, be subject to the condition that if at any time the Committee shall determine in its discretion that the listing upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the Option or the issuance or purchase of Option Shares thereunder, the Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee.
(c) If Grantee fails to pay for any of the Option Shares specified in the Notice of Exercise or fails to accept delivery thereof, Grantee's right to purchase such Option Shares may be terminated by the Company. The date specified in the Notice of Exercise as the date of exercise shall be deemed to be the date of exercise of the Option, provided that payment in full for the Option Shares to be purchased upon such exercise shall have been received by such date.
(d) Grantee shall notify the Company of any sale or other disposition of the Option Shares if such sale or disposition occurs (i) within 2 years of the Date of Grant or (ii) within one year of the issuance of the Option Shares to Grantee. Such notice shall be in writing and directed to the Secretary of the Company.
5. NO RIGHTS AS STOCKHOLDER
Neither Grantee nor any personal representative shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option.
6. NON-TRANSFERABILITY OF OPTION
The Option may not be transferred by Grantee other than by will or the laws of descent and distribution or pursuant to beneficiary designation procedures approved by the Company. In the event of (a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or otherwise dispose of the Option, except as provided for herein, or (b) the levy of any attachment, execution or similar process upon the rights or interest hereby conferred, the Company may terminate the Option by notice to Grantee and it shall thereupon become null and void.
7. EMPLOYMENT NOT AFFECTED
Neither the granting of the Option nor its exercise shall be construed as granting to Grantee any right with respect to the continuance of employment by the Company. Except as may otherwise be limited by a written agreement between the Company and Grantee, the right of the Company and any employing subsidiary to terminate at will Grantee's employment by the Company or any employing subsidiary at any time (whether by dismissal, discharge, retirement or otherwise) is specifically reserved by the Company, or the employing subsidiary (whichever the case may be), and acknowledged by Grantee.
8. AMENDMENT OF OPTION
The Option may be amended by the Board of Directors or the Committee at any time (i) if the Board of Directors or the Committee determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in the Internal Revenue Code of 1986, as amended, or in the regulations issued thereunder, or any federal or state securities law or other law or regulation, which change occurs after the Date of Grant and by its terms applies to the Option; or (ii) other than in the circumstances described in clause (i), with the consent of Grantee.
9. NOTICE
Any notice to the Company provided for in this Agreement shall be addressed to it in care of its Secretary at its executive offices at 405 Silverside Road, Wilmington, Delaware 19809 or at such other address as to which the Company shall have notified Grantee in writing and any notice to Grantee shall be addressed to the Grantee at the current address shown on the records of the Company. Any notice shall be deemed to be duly given if and when properly addressed and posted by registered or certified mail, postage prepaid, overnight delivery or confirmed telecopy.
10. INCORPORATION OF THE PLAN BY REFERENCE
The Option is granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the Option shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretations and determinations shall be conclusive and binding on the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
11. GOVERNING LAW
The validity, constructions, interpretations and effect of this Agreement shall exclusively be governed by and determined in accordance with the laws of the State of Delaware, except to the extent preempted by federal law, which shall apply to the extent it governs.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Grant of Non-Qualified Stock Option and Grantee has placed his or her signature hereon, effective as of the date first written above.
THE BANCORP, INC.
By: _______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
By: ______________________________
[Name], Grantee
NOTICE OF EXERCISE
Date:_____________, ____
The undersigned hereby irrevocably elects to exercise on ________________, ____ the Stock Option granted on ______________ by The Bancorp, Inc. to the undersigned to the extent of purchasing ____________ Option Shares and hereby makes payment of $____________________ in payment of the actual exercise price thereof.
Name: ____________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________
Signature: _______________________________________________________
Exhibit 4.6
THIS Agreement is made as of the ____ day of ____, ______ (the "DATE OF GRANT") by and between ________________ ("GRANTEE") and THE BANCORP, INC. (together with its successors and assigns, the "COMPANY").
WHEREAS, the Company's 1999 Option Plan (as amended, the "PLAN") provides for the granting of incentive stock options by the compensation committee (the "COMMITTEE") of the Board of Directors of the Company (the "BOARD OF DIRECTORS") to employees, members of the Board of Directors and certain other persons to purchase shares of common stock of the Company (the "SHARES"), in accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers Grantee to be a person who is eligible for a grant of incentive stock options under the Plan, and has determined that it would be in the best interest of the Company to grant the incentive stock options on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions hereinafter set forth, the
Company, with the approval and at the direction of the Committee, hereby grants
to Grantee, an option to purchase up to _______ Shares at a price of $______ per
Share. Such option is hereinafter referred to as the "OPTION" and the Shares
purchasable upon exercise of the Option are hereinafter sometimes referred to as
the "OPTION SHARES." The Option is intended by the parties hereto to be, and
shall be treated as, an incentive stock option (as such term is defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "CODE")).
2. INSTALLMENT EXERCISE
Subject to such further limitations as are provided herein, the Option shall become exercisable in 4 installments, Grantee having the right hereunder to purchase from the Company the following number of Option Shares upon exercise of the Option, on and after the following dates, in cumulative fashion:
(i) on and after the first anniversary of the Date of Grant, up to 25% (ignoring fractional shares) of the total number of Option Shares;
(ii) on and after the second anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares;
(iii) on and after the third anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares; and
(iv) on the fourth anniversary of the Date of Grant, up to an additional 25% (ignoring fractional shares) of the total number of Option Shares.
3. TERMINATION OF OPTION
(a) The Option and all rights hereunder with respect thereto, to the extent such rights shall not have been exercised, shall terminate and become null and void after the expiration of 5 years from the Date of Grant (the "OPTION TERM").
(b) Upon the termination of Grantee's service on the Board of Directors or employment for any reason, the Options may be exercised during the following periods but only to the extent the Options were outstanding and exercisable upon such termination of the Grantee's service or employment: (A) the 6-month period following the date of such termination; (B) the one year period following the date of death, in the case of Grantee's death during Grantee's service to or employment by the Company; and (C) the 3-month period following the date of such termination in the case of retirement on or after the attainment of age 65, or in the case of permanent disability. In no event, however, shall any such period extend beyond the Option Term.
(c) In the event of the death of Grantee, the Option may be exercised by Grantee's legal representative(s), but only to the extent that the Option would otherwise have been exercisable by Grantee.
(d) Notwithstanding any other provisions set forth herein or in the Plan, if Grantee shall (i) commit any act of malfeasance or wrongdoing affecting the Company or any subsidiary of Company, (ii) breach any covenant not to compete, or employment contract, with Company or any subsidiary of Company, or (iii) engage in conduct that would warrant Grantee's discharge for cause (excluding general dissatisfaction with the performance of Grantee's duties, but including any act of disloyalty or any conduct clearly tending to bring discredit upon the Company or any subsidiary of the Company), any unexercised portion of the Option shall immediately terminate and become null and void.
(e) During the period of 12 months immediately following the date upon which Grantee receives a "hardship" withdrawal from a retirement plan qualifying under ss.401(k) of the Code, all rights of Grantee to exercise the Option shall be suspended.
(f) Notwithstanding any other provision set forth herein, the Federal Reserve Board or the Federal Deposit Insurance Corporation ("FDIC"), individually or in conjunction with the other, may require Grantee to exercise or forfeit the Option if the capital of either the Company or The Bancorp Bank falls below minimum requirements, as determined by federal or state regulators.
4. EXERCISE OF OPTION; DISPOSITION OF SHARES
(a) Grantee may exercise the Option with respect to all or any part of the number of Option Shares granted hereunder by giving the Secretary of the Company written notice of intent to exercise, in the form attached hereto (the "NOTICE OF EXERCISE"). The Notice of Exercise shall specify the number of Option Shares as to which the Option is to be exercised and the date of exercise thereof, which date shall be at least 5 days after the giving of such notice unless an earlier time shall have been mutually agreed upon.
(b) Full payment (in U.S. dollars) by Grantee of the option price for the Option Shares purchased shall be made on or before the exercise date specified in the Notice of Exercise in cash, or, in whole or in part through the surrender of previously acquired Shares (which Grantee has held for at least 6 months prior to the Notice of Exercise or has purchased on the open market and for which Grantee has good title, free and clear of all liens and encumbrances) at their fair market value on the exercise date.
On the exercise date specified in the Notice of Exercise or as soon thereafter as is practicable, the Company shall cause to be delivered to Grantee a certificate or certificates for the Option Shares then being purchased (out of theretofore unissued Shares or reacquired Shares, as the Company may elect) upon full payment for such Option Shares. The obligation of the Company to deliver the Option Shares shall, however, be subject to the condition that if at any time the Committee shall determine in its discretion that the listing upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the Option or the issuance or purchase of Option Shares thereunder, the Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee.
(c) If Grantee fails to pay for any of the Option Shares specified in the Notice of Exercise or fails to accept delivery thereof, Grantee's right to purchase such Option Shares may be terminated by the Company. The date specified in the Notice of Exercise as the date of exercise shall be deemed to be the date of exercise of the Option, provided that payment in full for the Option Shares to be purchased upon such exercise shall have been received by such date.
(d) Grantee shall notify the Company of any sale or other disposition of the Option Shares if such sale or disposition occurs (i) within 2 years of the Date of Grant or (ii) within one year of the issuance of the Option Shares to Grantee. Such notice shall be in writing and directed to the Secretary of the Company.
5. NO RIGHTS AS STOCKHOLDER
Neither Grantee nor any personal representative shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option.
6. NON-TRANSFERABILITY OF OPTION
The Option may not be transferred by Grantee other than by will or the laws of descent and distribution or pursuant to beneficiary designation procedures approved by the Company. In the event of (a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or otherwise dispose of the Option, except as provided for herein, or (b) the levy of any attachment, execution or similar process upon the rights or interest hereby conferred, the Company may terminate the Option by notice to Grantee and it shall thereupon become null and void.
7. EMPLOYMENT NOT AFFECTED
Neither the granting of the Option nor its exercise shall be construed as granting to Grantee any right with respect to the continuance of employment by the Company. Except as may otherwise be limited by a written agreement between the Company and Grantee, the right of the Company and any employing subsidiary to terminate at will Grantee's employment by the Company or any employing subsidiary at any time (whether by dismissal, discharge, retirement or otherwise) is specifically reserved by the Company, or the employing subsidiary (whichever the case may be), and acknowledged by Grantee.
8. AMENDMENT OF OPTION
The Option may be amended by the Board of Directors or the Committee at any time (i) if the Board of Directors or the Committee determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in the Code or in the regulations issued thereunder, or any federal or state securities law or other law or regulation, which change occurs after the Date of Grant and by its terms applies to the Option; or (ii) other than in the circumstances described in clause (i), with the consent of Grantee.
9. NOTICE
Any notice to the Company provided for in this Agreement shall be addressed to it in care of its Secretary at its executive offices at 405 Silverside Road, Wilmington, Delaware 19809 or at such other address as to which the Company shall have notified Grantee in writing and any notice to Grantee shall be addressed to the Grantee at the current address shown on the records of the Company. Any notice shall be deemed to be duly given if and when properly addressed and posted by registered or certified mail, postage prepaid, overnight delivery or confirmed telecopy.
10. INCORPORATION OF THE PLAN BY REFERENCE
The Option is granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the Option shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretations and determinations shall be conclusive and binding on the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
11. GOVERNING LAW
The validity, constructions, interpretations and effect of this Agreement shall exclusively be governed by and determined in accordance with the laws of the State of Delaware, except to the extent preempted by federal law, which shall apply to the extent it governs.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Grant of Incentive Stock Option and Grantee has placed his or her signature hereon, effective as of the date first written above.
THE BANCORP, INC.
By: _______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
By: ______________________________
[Name], Grantee
NOTICE OF EXERCISE
Date:_____________, ____
The undersigned hereby irrevocably elects to exercise on ________________, ____ the Stock Option granted on ______________ by The Bancorp, Inc. to the undersigned to the extent of purchasing ____________ Option Shares and hereby makes payment of $____________________ in payment of the actual exercise price thereof.
Name: ____________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________
Signature: _______________________________________________________
Exhibit 5.1
[LETTERHEAD OF LEDGEWOOD, a professional corporation]
April 26, 2005
The Bancorp, Inc.
405 Silverside Road
Wilmington, DE 19809
Re: The Bancorp, Inc.'s 1999 Stock Option Plan - Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to The Bancorp, Inc. (the "Company") in connection with the registration under the Securities Act of 1933, as amended, of up to 1,000,000 shares of the Company's common stock, par value $1.00 per share (the "Shares"), issuable pursuant to awards ("Awards") granted under the Company's 1999 Stock Option Plan (the "Plan").
In rendering our opinion, we have reviewed the Plan and such certificates, documents, corporate records and other instruments and matters of law as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with the originals of all instruments presented to us as copies and the genuineness of all signatures.
The opinion expressed below is based on the assumption that a Registration Statement on Form S-8 with respect to the Shares will have been filed by the Company with the Securities and Exchange Commission and will have become effective before any of the Shares are issued, and that persons acquiring the Shares will do so strictly in accordance with the terms of the Plan and will receive a prospectus containing all the information required by Part I of the Registration Statement on Form S-8 before acquiring such Shares.
Based on the foregoing, we are of the opinion that the Shares, when issued pursuant to Awards granted under the Plan (including, where applicable, the payment of any exercise price and the satisfaction of any vesting restrictions) in accordance with the terms and conditions thereof, will be legally issued, fully paid and non-assessable.
This opinion is limited to the matters expressly stated herein. No implied opinion may be inferred to extend this opinion beyond the matters expressly stated herein. We do not undertake to advise you or anyone else of any changes in the opinions expressed herein resulting from changes in law, changes in facts or any other matters that hereafter might occur or be brought to our attention.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 being filed with respect to the offering of
the Shares.
Very truly yours,
/s/ Ledgewood, a professional corporation |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated March 30, 2005 accompanying the consolidated financial statements of The Bancorp, Inc. and its subsidiary appearing in the 2004 Annual Report of the Company to its shareholders included in the Annual Report on Form 10-K for the year ended December 31, 2004 which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned reports.
/s/ Grant Thornton LLP Philadelphia, Pennsylvania April 22, 2005 |