Registration No. _________
As filed with the Securities and Exchange Commission on May 31, 2002
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
DELAWARE 11-3209278
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
144-51 NORTHERN BOULEVARD, FLUSHING, NY 11354
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(Address of Principal Executive Offices) (Zip Code)
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Copy to: Gloria W. Nusbacher, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, N.Y. 10004
FOOTNOTES
* Each share of Common Stock includes a related right (a "Right") to purchase junior participating preferred stock of the Company. The Rights are not exercisable or transferable apart from the Common Stock at this time, and accordingly no independent value is attributable to such Rights.
** This Registration Statement relates to 540,000 shares which are issuable under the 1996 Stock Option Incentive Plan and 135,000 shares which are issuable under the 1996 Restricted Stock Incentive Plan. This Registration Statement also relates to such indeterminate number of additional shares (and related Rights) as may be issuable pursuant to stock splits, stock dividends, or similar transactions.
*** The proposed maximum offering price per share of Common Stock and the proposed maximum aggregate offering price are calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) under the Securities Act of 1933. The fee is based on a price of $19.28 which is the average of the high and low sales prices of the Common Stock on May 29, 2002 as quoted on the Nasdaq National Market.
Securities offered and sold under the benefit plans which are the subject of this Registration Statement were also registered by means of Registration Statements on Form S-8 No. 333-3878 filed on April 22, 1996 and No. 333-85639 filed on August 20, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Flushing Financial Corporation (the "Company") under the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December 31, 2001;
(b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2001; and
(c) The description of the Company's Common Stock and Rights contained in the Company's registration statements therefor and subsequent amendments thereof.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in a subsequently filed document which is also incorporated by reference herein modifies or supersedes such statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful.
A similar standard of care is applicable in the case of derivative actions to which such a person is or was a party by reason of such person's status or capacity as described above, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such an action, and the DGCL requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. Additionally, the corporation is required to indemnify its directors and officers against expenses (including attorneys' fees) actually and reasonably incurred by such person to the extent that such directors or officers have been successful on the merits or otherwise in defense of any claim, issue or matter referred to in Section 145 of the DGCL.
The indemnification provided by Section 145 of the DGCL includes the right of an officer or director to be paid by the corporation the expenses incurred in defending any such proceedings in advance of their final disposition. Such advance payment of expenses, however, may be made only upon delivery to the corporation by the indemnified party of an undertaking to repay all amounts so advanced if it shall ultimately be determined that the person receiving such payments is not entitled to be indemnified pursuant to Section 145 of the DGCL.
In addition, Section 145 of the DGCL authorizes a Delaware
corporation to purchase and maintain insurance, at its expense, on behalf of any
person who is or was a director, officer, employee or agent of the corporation
or is or was serving at the corporation's request in such capacity for another
entity against any liability asserted against, or incurred by, such person in
any such capacity or arising out of such status, whether or not the corporation
would have the power to indemnify such person against such liability under
Section 145 of the DGCL.
The Company's Certificate of Incorporation limits under certain
circumstances the personal liability of the Company's directors for a breach of
their fiduciary duty as directors. The provisions do not eliminate the liability
of a director (i) for a breach of the director's duty of loyalty to the Company
or its shareholders, (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 DGCL (relating to the declaration of dividends and purchase
or redemption of shares in violation of the DGCL), or (iv) for any transaction
from which the director derived an improper personal benefit.
Article TENTH of the Company's Certificate of Incorporation provides that the Company shall indemnify to the fullest extent permitted by the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of the Company. Article TENTH further provides that such persons have the right to be
paid in advance by the Company for their expenses to the full extent permitted by the laws of the State of Delaware.
Flushing Savings Bank, FSB (the "Bank"), which is a wholly-owned subsidiary of the Company, has the following provisions for the indemnification of directors and officers:
Article XI of the Bank's Bylaws provides that, to the full extent permitted by law, the Bank shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of the Bank. Article XI further provides that, to the full extent permitted by law, the Bank shall advance or promptly reimburse upon request any person entitled to indemnification thereunder for the reasonable expenses, including attorneys' fees and expenses, reasonably incurred in connection with any proceeding in advance of the final disposition thereof in accordance with such procedures as the Board of Directors shall determine in accordance with applicable law.
In addition, Article XI provides that upon resolution passed by the Board of Directors, the Bank may purchase and maintain insurance to indemnify directors and officers and others, whether or not entitled to indemnification under Article XI of the Bylaws to the full extent permitted by law.
Regulations promulgated by the FDIC at 12 CFR 359 provide that an insured depository institution or affiliated depository institution holding company may make or agree to make reasonable indemnification payments to certain persons, including officers and directors of the institution and its holding company with respect to an administrative proceeding or civil action initiated by any federal banking agency, only if: (i) the indemnification payments do not pay or reimburse such person for a civil money penalty or judgment resulting from any administrative or civil action instituted by any federal banking agency, or for any other expense (including the amount of any settlement) which results in a final order or settlement pursuant to which such person is assessed a civil money penalty, is removed from office or prohibited from participating in the conduct of the affairs of the insured depository institution, or is required to cease and desist from or take specified affirmative actions with respect to such institution, and (ii) the board of directors of the insured depository institution or depository institution holding company, in good faith, determines in writing after due investigation and consideration that the person acted in good faith and in a manner he/she believed to be in the best interests of the institution; and that the payment of such expenses will not materially adversely affect the institution's or holdings company's safety and soundness.
The Company and the Bank have entered into an Indemnity Agreement with each of their executive officers and directors, which agreements provide for mandatory indemnification for each such person to the full extent permitted by law against judgments, fines, amounts paid in settlement, and expenses incurred in connection with any claim arising out of such person's service to the Company or the Bank unless he was adjudicated to have acted in bad faith, deliberate dishonesty or for personal gain. The agreements provide for advancement of expenses and specify procedures for determining entitlement to indemnification in a particular case.
The Bank has a contract for insurance coverage under which the Bank's officers and directors (as well as the Company) are indemnified under certain circumstances with respect to litigation and other costs and liabilities arising out of actual or alleged misconduct of such directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
NUMBER DESCRIPTION METHOD OF FILING
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4.1 Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company Registration Statement on Form S-1 (No.
33-96488)
4.2 Amendment to Certificate of Incorporation Filed herewith
4.3 By-Laws of the Company Filed as Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (No.
33-96488)
4.4 Rights Agreement dated as of September Filed as an Exhibit to the Company's Form 8-K
17, 1996 between the Company and filed September 30, 1996
EquiServe Trust Company N.A. (successor
to State Street Bank and Trust Company),
as Rights Agent
4.5 1996 Stock Option Incentive Plan (as Filed as Exhibit 10.18 to the Company's Form
amended through March 19, 2002) 10-K filed April 1, 2002
4.6 1996 Restricted Stock Incentive Plan (as Filed as Exhibit 10.17 to the Company's Form
amended through March 19, 2002) 10-K filed April 1, 2002
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith
23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1
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NUMBER DESCRIPTION METHOD OF FILING ------ ----------- ---------------- 24.1 Powers of Attorney Filed herewith |
Item 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the 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 or furnished by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
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 New York, State of New York, on this 31st day of May, 2002.
FLUSHING FINANCIAL CORPORATION
By: /S/ MICHAEL J. HEGARTY
--------------------------------
Michael J. Hegarty
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on this 31st day of May, 2002.
SIGNATURE CAPACITY
* President and Chief Executive Officer and
--------------------------------- Director
Michael J. Hegarty
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Gerard P. Tully, Sr.
* Senior Vice President, Chief Financial
--------------------------------- Officer and Treasurer (principal financial
Monica C. Passick and accounting officer)
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James D. Bennett
SIGNATURE CAPACITY
* Director
---------------------------------
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Robert A. Marani
* By: /S/ MICHAEL J. HEGARTY
------------------------,
as authorized by Power of
Attorney filed as Exhibit
24.1 to this Registration
Statement
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EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING
------ ----------- ----------------
4.1 Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's Registration Statement
Company on Form S-1 (No. 33-96488)
4.2 Amendment to Certificate of Filed herewith
Incorporation
4.3 By-Laws of the Company Filed as Exhibit 3.2 to the Company's Registration Statement
on Form S-1 (No. 33-96488)
4.4 Rights Agreement dated as of Filed as an Exhibit to the Company's Form 8-K filed September
September 17, 1996 between the 30, 1996
Company and EquiServe Trust Company
N.A. (successor to State Street
Bank and Trust Company), as Rights
Agent
4.5 1996 Stock Option Incentive Plan Filed as Exhibit 10.18 to the Company's Form 10-K filed April
(as amended through March 19, 2002) 1, 2002
4.6 1996 Restricted Stock Incentive Filed as Exhibit 10.17 to the Company's Form 10-K filed April
Plan (as amended through March 19, 1, 2002
2002)
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of PricewaterhouseCoopers Filed herewith
LLP
23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1
24.1 Powers of Attorney Filed herewith
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Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FLUSHING FINANCIAL CORPORATION
Flushing Financial Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted resolutions that set forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable. The resolution setting forth the proposed amendment is as follows:
RESOLVED, the Board of Directors hereby proposes, and declares it advisable, that the Certificate of Incorporation of this Corporation be amended by changing Article Fourth, Paragraph (A) so that, as amended, said paragraph of said Article shall be and read as follows:
"FOURTH: (A) The total number of shares of all classes of stock which the Corporation shall have authority to issue is 45,000,000, consisting of 5,000,000 shares of preferred stock, par value $.01 per share (hereinafter referred to as "Preferred Stock"), and 40,000,000 shares of common stock, par value $.01 per share (hereinafter referred to as "Common Stock")."
SECOND: That thereafter an annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the majority of the outstanding shares was voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by Michael J. Hegarty, its authorized officer, this 22nd day of May, 2002.
FLUSHING FINANCIAL CORPORATION
BY: /S/ MICHAEL J. HEGARTY
--------------------------------
Name: Michael J. Hegarty
Title: Chief Executive Officer and
President
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[HUGHES HUBBARD & REED LLP LETTERHEAD]
Exhibit 5.1
May 31, 2002
Flushing Financial Corporation
144-51 Northern Boulevard
Flushing, New York 11354
Re: 1996 Stock Option Incentive Plan and
1996 RESTRICTED STOCK INCENTIVE PLAN
Ladies & Gentlemen:
You have requested our opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") of Flushing Financial Corporation (the "Company") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to 675,000 shares (the "Shares") of common stock, par value $.01 per share of the Company and related rights to purchase shares of junior participating preferred stock (the "Rights") to be issued in accordance with the provisions of the Company's 1996 Stock Option Incentive Plan, as amended and restated effective March 19, 2002 (the "Stock Option Plan"), and the Company's 1996 Restricted Stock Incentive Plan, as amended and restated effective March 19, 2002 (the "Restricted Stock Plan" and, together with the Stock Option Plan, the "Plans").
This Opinion Letter is governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). As a consequence, it is subject to a number of qualifications, exceptions, definitions, limitations on coverage and other limitations, all as more particularly described in the Accord, and this Opinion Letter should be read in conjunction therewith. The law covered by the opinions expressed herein is limited to the Federal Law of the United States and the General Corporation Law of the State of Delaware. We are not members of the Delaware Bar.
Based upon and subject to the foregoing, we are of the opinion that when (i) the applicable provisions of the Securities Act and of such "Blue Sky" or other state securities laws as may be applicable shall have been complied with, (ii) the Shares deliverable under the Stock Option Plan upon exercise of stock options shall have been issued for cash or other consideration in an amount at least equal to the aggregate par value of such Shares and in accordance with the terms of the Stock Option Plan, (iii) the Shares deliverable under the Restricted Stock Plan as restricted stock (subject to forfeiture upon a failure to render specified future services) shall have been issued in consideration of the payment of cash in an amount, or the rendition of prior services having a value, at least equal to the aggregate par value of such Shares, or delivered from the treasury of the Company, in either case in accordance with the terms of the Restricted Stock Plan, (iv) the Shares, if any, deliverable under the Restricted Stock Plan which are not subject to forfeiture shall have been issued in consideration of the payment of cash in an amount, or the rendition of prior services having a value, at least equal to the greater of the aggregate par value of such Shares or the value of such Shares and in
accordance with the terms of the Restricted Stock Plan, and (v) the Share certificates shall have been duly executed and delivered, (a) the Shares will be legally issued, fully paid and nonassessable, and (b) the Rights attached to such Shares, when issued in accordance with the terms of the Rights Agreement, dated as of September 17, 1996, by and between the Company and EquiServe Trust Company N.A. (successor to State Street Bank and Trust Company), as Rights Agent, will be legally issued.
In reaching our opinion with respect to the Shares issued as restricted stock described in clause (iii) above, we have concluded that the fact that such Shares are subject to forfeiture if the recipient thereof fails to provide services as specified in the grant letter with respect thereto should be regarded as substantially equivalent to a binding commitment to pay the balance of the purchase price over the amount paid in cash or prior services upon issuance.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Hughes Hubbard & Reed LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Flushing Financial Corporation of our report dated January 22, 2002 relating to the consolidated financial statements which appears in Flushing Financial Corporation's Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the reference to our firm under the heading "Experts" in the prospectus documents relating to the plans which are the subject of this Registration Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
May 30, 2002
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Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does hereby constitute and appoint each of Michael J. Hegarty, Monica C. Passick and Anna M. Piacentini, with full power of substitution, his true and lawful attorney to execute in his name a Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission under the Securities Act of 1933 relating to 675,000 shares of common stock of Flushing Financial Corporation (the "Company") which may be issued under the Company's 1996 Stock Option Incentive Plan and the Company's 1996 Restricted Stock Incentive Plan, including without limitation, any and all amendments (including post-effective amendments) to such Registration Statement, and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission. Each such attorney and his substitutes shall have and may exercise all powers to act hereunder. Each of the undersigned does hereby ratify and confirm all that said attorney and agent shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto as of this 21st day of May, 2002.
/S/ MICHAEL J. HEGARTY /S/ GERARD P. TULLY, SR.
--------------------------------- ---------------------------------
Michael J. Hegarty Gerard P. Tully, Sr.
/S/ MONICA C. PASSICK /S/ JAMES D. BENNETT
--------------------------------- ---------------------------------
Monica C. Passick James D. Bennett
/S/ ROBERT A. MARANI
--------------------------------- ---------------------------------
Louis C. Grassi Robert A. Marani
/S/ JOHN O. MEAD /S/ VINCENT F. NICOLOSI
--------------------------------- ---------------------------------
John O. Mead Vincent F. Nicolosi
/S/ FRANKLIN F. REGAN, JR. /S/ JOHN E. ROE, SR.
--------------------------------- ---------------------------------
Franklin F. Regan, Jr. John E. Roe, Sr.
/S/ MICHAEL J. RUSSO
---------------------------------
Michael J. Russo
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