As filed with the Securities and Exchange Commission on March 22, 2000
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORTH FORK BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3154608
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(Address of Principal Executive Offices including Zip Code)
JSB FINANCIAL, INC. 1996 STOCK OPTION PLAN
(Full title of the plan(s))
JOHN ADAM KANAS, PRESIDENT
NORTH FORK BANCORPORATION, INC.
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(Name and address of agent for service)
(631) 298-5000
(Telephone number, including area code, of agent for service).
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value* 4,632 $15.34 $71,054.88 $18.76**
====================================================================================================
</TABLE>
- ------------------------
* As of February 11, 2000, North Fork Bancorporation, Inc. amended its
Restated Certificate of Incorporation to change the par value of its
common stock from $2.50 to $0.01.
** The registration fee has been calculated pursuant to Rule 457(h)(1)
under the Securities Act of 1933, as amended, based on the average of
the high and low sales prices per share for the common stock of the
Registrant as reported on the New York Stock Exchange on March 15,
2000 ($15.34 per share).
EXPLANATORY NOTE
On March 22, 2000, under Post-Effective Amendment No. 1 to
North Fork Bancorporation, Inc.'s (the "Company") Registration Statement on
Form S-4 (No. 333-94385), The Company registered 2,143,368 shares of its
common stock underlying stock options pursuant to the JSB Financial, Inc.
1996 Stock Option Plan (the "1996 Plan") which was assumed by the Company
pursuant to the Amended and Restated Agreement and Plan of Merger, dated as
of August 16, 2000 (the "Merger Agreement"), between JSB Financial, Inc.
and the Company. This Registration Statement on Form S-8 relates to 4,632
shares of common stock, par value $0.01 per share, of the Company, which
were not previously registered and which the company is required to issue
under the 1996 Plan pursuant to the Merger Agreement.
PART I. INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Omitted pursuant to the instructions and provisions of Form
S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION
Omitted pursuant to the instructions and provisions of Form
S-8.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, previously filed with the SEC by North
Fork Bancorporation, Inc., a Delaware corporation ("North Fork"), pursuant
to the Securities Exchange Act of 1934, are incorporated by reference in
this registration statement:
(3) North Fork's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (the "1998 Form 10-K");
(4) North Fork's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999;
(3) North Fork's Current Reports on Form 8-K filed on (a)
August 16, 1999, (b) August 31, 1999, (c) October 25, 1999, (d) December
30, 1999, (e) January 12, 2000, (f) February 1, 2000 (g) March 3, 2000, (h)
March 13, 2000, (i) March 14, 2000, and (j) March 14, 2000;
(4) The portions of North Fork's Proxy Statement for its Annual
Meeting of Stockholders held on April 28, 1999 that have been incorporated
by reference in the 1998 Form 10-K;
(5) The description of the North Fork's common stock, which is
contained in the registration statement filed by the North Fork under
Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description; and
All documents subsequently filed by North Fork Bancorporation,
Inc. pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment that indicates that all
securities offered by this registration statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part of this registration
statement from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference in this registration statement shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained in this registration statement or in any other
subsequently filed document that also is incorporated or deemed to be
incorporated by reference in this registration statement modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
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 Delaware General Corporate Law (the "DGCL")
generally provides that a corporation may indemnify directors, officers,
employees or agents against liabilities they may incur in such capacities
provided certain standards are met, including good faith and the reasonable
belief that the particular action was in, or not opposed to, the best
interests of the corporation.
Subsection (a) of Section 145 of the DGCL ("Section 145") empowers a
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, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of the
fact that he 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 enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was
unlawful.
Subsection (b) of Section 145 empowers a 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 or suit by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that
such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted under standards similar to those set forth above, except that no
indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Delaware Court of Chancery or the
court in which such action or suit was brought shall determine that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the court shall deem proper.
Section 145 further provides that, among other things, to the extent
that a director or officer of a corporation has been successful in the
defense of any action, suit or proceeding referred to in Subsections (a)
and (b) of Section 145, or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and
that a corporation is empowered to purchase and maintain insurance on
behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
power to indemnify against such liability under Section 145.
Indemnification as described above shall be granted in a specific
case only upon a determination that indemnification is proper under the
circumstances using the applicable standard of conduct which is made by (a)
a majority of directors who were not parties to such proceeding, (b)
independent legal counsel in a written opinion if there are no such
disinterested directors or if such disinterested directors so direct, or
(c) the shareholders.
Article 8.1 of the By-laws of the Registrant provides that the
Registrant 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 he is or was a
director or officer of the Registrant against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him to the fullest extent permitted by the DGCL
and any other applicable law, as may be in effect from time to time.
Article 8.2 of the By-laws of the Registrant provides that the
Registrant may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was an employee or agent of
the Registrant or is serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him to the extent permitted by the DGCL and any
other applicable law, as may be in effect from time to time.
Section 102(b)(7) of the DGCL ("Section 102(b)(7)") permits the
certificate of incorporation of a corporation to limit or eliminate a
director's personal liability to the corporation or its stockholders for
monetary damages for breach of his fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation 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 DGCL (dealing with unlawful dividends
or unlawful stock purchases or redemptions), or (iv) for any transaction
from which the director derived an improper personal benefit.
Article 10 of the Registrant's Certificate of Incorporation provides
that, subject only to the express prohibitions on elimination or limitation
of liability of directors set forth in Section 102(b)(7), as it now exists
or may be hereinafter amended, directors shall not be liable for monetary
damages in excess of $25,000 per occurrence resulting from a breach of
their fiduciary duties.
The Registrant maintains directors' and officers' liability
insurance policies providing for the insurance on behalf of any person who is
or was a director or officer of the Registrant and subsidiary companies
against any liability incurred by him in any such capacity or arising out
of his status as such. The insurer's limit of liability under the policies is
$25,000,000 in the aggregate for all insured losses per year. The policies
contain various reporting requirements and exclusions.
The Federal Deposit Insurance Act (the "FDI Act") provides that the
Federal Deposit Insurance Corporation (the "FDIC") may prohibit or limit,
by regulation or order, payments by any insured depository institution or
its holding company for the benefit of directors and officers of the
insured depository institution, or others who are or were
"institution-affiliated parties," as defined under the FDI Act, in order to
pay or reimburse such person for any liability or legal expense sustained
with regard to any administrative or civil enforcement action which results
in a final order against the person. FDIC regulations prohibit, subject to
certain exceptions, insured depository institutions, their subsidiaries and
affiliated holding companies from indemnifying officers, directors or
employees for any civil money penalty or judgment resulting from an
administrative or civil enforcement action commenced by any federal banking
agency, or for that portion of the costs sustained with regard to such an
action that results in a final order or settlement that is adverse to the
director, officer or employee.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) (i) - (ii) not applicable;
(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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this 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) - (g) Not Applicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
North Fork Bancorporation, Inc. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing this Registration
Statement on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, there unto duly authorized, in the
City of Melville, State of New York, on this 22nd day of March, 2000.
NORTH FORK BANCORPORATION, INC.
By: /s/ Daniel M. Healy
-------------------------
Daniel M. Healy
Executive Vice President
and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of North Fork
Bancorporation, Inc. hereby severally and individually constitute and
appoint Daniel M. Healy, our true and lawful attorney-in-fact and agent
(with full power of substitution and resubstitution in each case) of each
of us to execute in the name, place and stead of each of us, individually
and in any and all capacities, any and all amendments (including
post-effective amendments) to this registration statement on Form S-8 and
all instruments necessary or advisable to enable said company to comply
with the Securities Act of 1933, as amended, and any rules, regulations or
requirements of the SEC in connection therewith and to file the same with
the SEC, and said attorney and agent to have power to act and to have full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as any of the undersigned might or could do in
person, and we hereby ratify and confirm all that the said
attorneys-in-fact and agents or each of them, shall do or cause to be done
by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 22ND DAY OF MARCH, 2000.
Name Title
---- -----
/s/ John A. Kanas
- ------------------------------
John A. Kanas President, Chief Executive Officer and
Chairman of the Board
/s/ Daniel M. Healy
- ------------------------------
Daniel M. Healy Executive Vice President and Chief Financial
Officer (Principal Financial and Accounting
Officer)
- ------------------------------
Park T. Adikes Director
- ------------------------------
John Bohlsen Director
/s/ Irvin L. Cherashore
- ------------------------------
Irvin L. Cherashore Director
/s/ Allan C. Dickerson
- ------------------------------
Allan C. Dickerson Director
/s/ Lloyd A. Gerard
- ------------------------------
Lloyd A. Gerard Director
/s/ Patrick E. Malloy, III
- ------------------------------
Patrick E. Malloy, III Director
/s/ Raymond A. Nielsen
- ------------------------------
Raymond A. Nielsen Director
/s/ Thomas M. O'Brien
- ------------------------------
Thomas M. O'Brien Director
- ------------------------------
James F. Reeve Director
/s/ George H. Rowsom
- ------------------------------
George H. Rowsom Director
- ------------------------------
Kurt R. Schmeller Director
/s/ Raymond W. Terry, Jr.
- ------------------------------
Raymond W. Terry, Jr. Director
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------ -------------------
4.1 Restated Certificate of Incorporation of North Fork
Bancorporation, Inc., as amended. Previously filed on Form
S-8 dated March 3, 2000, as Exhibit 4.1, and incorporated
herein by reference.
4.2 Amended and Restated By-Laws of North Fork Bancorporation,
Inc., as amended, effective July 28, 1992. Previously filed
on Form 10-K, for the year ended December 31, 1993 dated
March 9, 1994, as Exhibit 3(b), and incorporated herein by
reference.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of KPMG LLP, New York, N.Y.
23.2 Consent of KPMG LLP, New York, N.Y.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1 hereto).
24.1 Powers of Attorney (see signature page to this Registration
Statement).
EXHIBIT 5.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
March 22, 2000
Board of Directors
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
Re: North Fork Bancorporation, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as special counsel to North Fork Bancorporation, Inc.,
a Delaware corporation (the "Company"), in connection with the preparation
of a Registration Statement on Form S-8, which is being filed by the
Company with the Securities and Exchange Commission (the "Commission") on
the date hereof (the "Registration Statement") relating to the registration
and issuance by the Company of an aggregate of up to 4,632 shares of common
stock, par value $0.01 per share (the "Common Stock"), of the Company
pursuant to the JSB Financial, Inc. 1996 Stock Option Plan (the "1996
Plan"), which has been assumed by the Company pursuant to the Amended and
Restated Agreement and Plan of Merger, dated as of August 16, 1999 (the
"Merger Agreement"), by and between the Company and JSB Financial, Inc., a
Delaware corporation.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement, (ii) the Merger Agreement, (iii) the form of
certificates to be used to represent the shares of Common Stock, (iv) the
Restated Certificate of Incorporation and Amended and Restated By-Laws of
the Company, as amended to date, (v) resolutions adopted by the Board of
Directors of the Company with respect to the Merger Agreement and the
issuance of the shares of Common Stock contemplated thereby, and (vi) such
other documents as we have deemed necessary or appropriate as a basis for
the opinions set forth below.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies, and the authenticity of originals of such copies. As to
any facts material to this opinion which we did not independently establish
or verify, we have relied upon statements or representations of officers
and other representatives of the Company and others.
Members of our firm are admitted to the bar in the State of New York,
and we do not express any opinion as to the law of any other jurisdiction
other than the General Corporation Law of the State of Delaware and the
laws of the United States of America to the extent specifically referred to
herein.
Based upon and subject to the foregoing, and assuming the due
execution and delivery of certificates representing the shares of Common
Stock in the form examined by us, we are of the opinion that the shares of
Common Stock to be issued by the Company pursuant to the 1996 Plan will be
duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5.1 to the Registration Statement. In giving such consent we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
North Fork Bancorporation, Inc.:
We consent to the use of our report, dated January 14, 1999, incorporated
by reference in the Registration Statement on Form S-8 of North Fork
Bancorporation, Inc., dated March 22, 2000, relating to the consolidated
balance sheets of North Fork Bancorporation, Inc. and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of
income, cash flows, changes in stockholders' equity, and comprehensive
income for each of the years in the three-year period ended December 31,
1998, which report is included in the 1998 Annual Report to Shareholders of
North Fork Bancorporation, Inc. and has been incorporated by reference in
the December 31, 1998 Annual Report on Form 10-K of North Fork
Bancorporation, Inc.
/s/ KPMG LLP
- -------------------
KPMG LLP
New York, New York
March 22, 2000
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
North Fork Bancorporation, Inc.:
We consent to the use of our report, dated March 10, 2000, incorporated by
reference in the Registration Statement on Form S-8 of North Fork
Bancorporation, Inc., ("the Company") dated March 22, 2000, relating to the
supplemental consolidated balance sheets of North Fork Bancorporation, Inc.
and subsidiaries as of December 31, 1998 and 1997, and the related
supplemental consolidated statements of income, cash flows, changes in
stockholders' equity, and comprehensive income for each of the years in the
three-year period ended December 31, 1998, which report is included in the
Company's current report on Form 8-K filed on March 14, 2000.
/s/ KPMG LLP
- ---------------------
KPMG LLP
New York, New York
March 22, 2000
