As filed with the Securities and Exchange Commission on August 12, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUN BANCORP, INC.
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(Exact Name of Registrant As Specified In Its Charter)
Pennsylvania
-------------------------------
(State or other jurisdiction of
incorporation or organization)
2-16 South Market Street, Selinsgrove, Pennsylvania
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(Address of principal executive offices
23-2233584
---------------
(I.R.S. Employer Identification No.)
17870
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(Zip Code)
SUN BANCORP, INC. 1998 INDEPENDENT DIRECTORS STOCK OPTION PLAN
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(Full title of the plan)
Fred W. Kelly, Jr., President
SUN BANCORP, INC.
2-16 South Market Street
Selinsgrove, Pennsylvania 17870
(717) 374-1131
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(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies To:
Nicholas Bybel, Jr., Esquire
B. Tyler Lincoln, Esquire
SHUMAKER WILLIAMS, P.C.
Post Office Box 88
Harrisburg, Pennsylvania 17108
(717) 763-1121
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Each Class Amount Proposed Maximum
of Securities to to be Offering Price
be Registered Registered(1) Per Share(2)
<S> <C> <C>
Common Stock,
No Par Value 105,000 $29.25
<CAPTION>
Title of Each Class Proposed Maximum Amount of
of Securities to Aggregate Registration
be Registered Offering Price(2) Fee
<S> <C> <C>
Common Stock,
No Par Value $3,071,250.00 $906.02
<FN>
(1) Based on the maximum number of shares of Sun Bancorp, Inc. common stock, no
par value ("Common Stock") authorized for issuance under the plan set forth
above. There are also registered hereby such indeterminate number of shares
of Common Stock as may become issuable by reason of the anti-dilution
provisions of the plan.
(2) Estimated pursuant to Rule 457(c) and (h)(1) solely for the purpose of
calculating the amount of the registration fee based upon the average of
the closing bid and asked prices of the Common Stock on August 7, 1998,
with respect to the shares of Common Stock issuable under the plan.
</FN>
</TABLE>
Page 1 of 30 Sequentially Numbered Pages
Index to Exhibits Found on Page 16
<PAGE>
TO PARTICIPANTS IN THE SUN BANCORP, INC.
1998 INDEPENDENT DIRECTORS STOCK OPTION PLAN
Sun Bancorp, Inc. (the "Company") has filed a Registration Statement,
concerning the shares of Common Stock, no par value ( the "Common Stock") that
the Company may, from time to time, issue pursuant to the Sun Bancorp, Inc. 1998
Independent Directors Stock Option Plan, (the "Plan"). The Prospectus deemed to
form a part of the Registration Statement consists of certain documents and
explanatory memoranda regarding the Plan. Also deemed to comprise part of the
Prospectus, are the following documents, each of which is specifically
incorporated by reference into the Registration Statement and each of which is
on file with the Securities and Exchange Commission (the "Commission") File No.
0-14745):
(a) the Company's Annual Report on Form 10-K for the year ended December 31,
1997, filed with the Commission on March 27, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998, filed with the Commission on May 15, 1998; and
(c) description of the Company's Common Stock that appears at pages 15 and 16
of the Corporation's Prospectus, which forms a part of the Corporation's
Registration Statement No. 333-30723, filed with the Commission on July 3,
1997.
All documents filed with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of the Prospectus and prior to the termination of the offering
made hereby, shall be deemed to be incorporated by reference in the Prospectus
and to be a part thereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein 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 the Prospectus.
The Company will provide, without charge, to each participant in the Plan
who so requests, a copy of any or all of the documents mentioned above, as well
as, all documentation relating to the Plan required to be delivered to
participants pursuant to the rules adopted under the Securities Act of 1933, as
amended. Requests for such copies should be addressed orally or in writing to:
Attention: Fred W. Kelly, Jr.
President and Chief Executive Officer
Sun Bancorp, Inc.
2-16 South Market Street
Selinsgrove, Pennsylvania 17870
(717) 374-1131
August 12, 1998
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents filed by the Company with the Commission, under File No.
0-14745:
(a) the Company's Annual Report on Form 10-K for the year ended December 31,
1997, filed with the Commission on March 27, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998, filed with the Commission on May 15, 1998; and
(c) description of the Company's Common Stock that appears at pages 15 and 16
of the Corporation's Prospectus, which forms a part of the Corporation's
Registration Statement No. 333-30723, filed with the Commission on July 3,
1997.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
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 filing of such documents.
Any statements contained in a document incorporated or deemed to be
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 herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein 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.
The document(s) containing the information specified in Items 1 and 2 of
Part I of this Form S-8 that will be sent or given to the plan participants, as
specified in Rule 428(b)(1) and in accordance with the instructions to Part I of
Form S-8, are not filed with the Securities and Exchange Commission as a part of
this Registration Statement.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Subchapter D of Chapter 17 of the Pennsylvania Business Corporation Law of
1988, as amended (the "BCL"), (15 Pa. C.S.A. Sections 1741-1750) provides that a
business corporation shall have the power under certain circumstances to
indemnify directors, officers, employees and agents against certain expenses
incurred by them in connection with any threatened, pending or completed action,
suit or proceeding.
Section 1721 of the BCL (relating to the Board of Directors) declares that
unless otherwise provided by statute or in a by-law adopted by the shareholders,
all powers enumerated in Section 1502 (relating to general powers) and elsewhere
in the BCL or otherwise vested by law in a business corporation shall be
exercised by or under the authority of, and the business and affairs of every
business corporation shall be managed under the direction of, a board of
directors. If any such provision is made in the by-laws, the powers and duties
conferred or imposed upon the board of directors under the BCL shall be
exercised or performed to such extent and by such person or persons as shall be
provided in the by-laws.
Section 1712 of the BCL provides that a director shall stand in a fiduciary
relation to the corporation and shall perform his duties as a director,
including his duties as a member of any committee of the board upon which he may
serve, in good faith, in a manner he reasonably believes to be in the best
interests of the corporation and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances. In performing his duties, a director shall be entitled to rely in
good faith on information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented by any
of the following:
(1) one or more officers or employees of the corporation whom the director
reasonably believes to be reliable and competent in the matters
presented;
(2) counsel, public accountants or other persons as to matters which the
director reasonably believes to be within the professional or expert
competence of such person; or
(3) a committee of the board upon which he does not serve, duly designated
in accordance with law, as to matters within its designated authority,
which committee the director reasonably believes to merit confidence.
A director shall not be considered to be acting in good faith, if he has
knowledge concerning the matter in question that would cause his reliance to be
unwarranted.
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Section 1716 also states that in discharging the duties of their respective
positions, the board of directors, committees of the board and individual
directors may, in considering the best interests of the corporation, consider
the effects of any action upon employees, upon suppliers and customers of the
corporation and upon communities in which offices or other establishments of the
corporation are located, and all other pertinent factors. The consideration of
those factors shall not constitute a violation of Section 1712. In addition,
absent breach of fiduciary duty, lack of good faith or self-dealing, actions
taken as a director or any failure to take any action shall be presumed to be in
the best interests of the corporation.
Moreover, Section 1713 addresses the personal liability of directors and
states that if a by-law adopted by the shareholders so provides, a director
shall not be personally liable, as such, for monetary damages for any action
taken, or any failure to take any action, unless:
(1) the director has breached or failed to perform the duties of his
office under this section; and
(2) the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
The provisions discussed above shall not apply to:
(1) the responsibility or liability of a director pursuant to any criminal
statute; or
(2) the liability of a director for the payment of taxes pursuant to
local, state or federal law.
Finally, Section 1714 states that a director of a corporation who is
present at a meeting of its board of directors, or of a committee of the board,
at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent is entered in the minutes of the
meeting or unless he files his written dissent to the action with the secretary
of the meeting before the adjournment thereof or transmits the dissent in
writing to the secretary of the corporation immediately after the adjournment of
the meeting. The right to dissent shall not apply to a director who voted in
favor of the action. Nothing in this Section 1721 shall bar a director from
asserting that minutes of the meeting incorrectly omitted his dissent if,
promptly upon receipt of a copy of such minutes, he notified the secretary, in
writing, of the asserted omission or inaccuracy.
Section 1741 of the BCL (relating to third party actions) provides that
unless otherwise restricted in its by-laws, a business corporation shall have
the power 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 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 such person
is or was a representative of the corporation, or is or was serving at the
request of the corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust 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 the action or
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proceeding if such person 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 proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action or proceeding by
judgment, order, settlement or conviction or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that the person did not
act in good faith and in a manner that he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and with respect to any
criminal proceeding, had reasonable cause to believe that his conduct was not
unlawful.
Section 1742 of the BCL (relating to derivative actions) provides that
unless otherwise restricted in its by-laws, a business corporation shall have
the power 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 by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was a representative of the corporation, or is or was serving
at the request of the corporation as a representative of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of the action if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation. Indemnification shall not be made under this section in respect of
any claim, issue or matter as to which such person has been adjudged to be
liable to the corporation unless, and only to the extent that, the court of
common pleas of the judicial district embracing the county in which the
registered office of the corporation is located or the court in which such
action was brought determines 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
common pleas or such other court shall deem proper.
Section 1743 of the BCL (relating to mandatory indemnification) provides
for mandatory indemnification of directors and officers such that to the extent
that a representative of the business corporation has been successful on the
merits or otherwise in defense of any action or proceeding referred to in
Sections 1741 (relating to third party actions) or 1742 (relating to derivative
actions), or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 1744 of the BCL (relating to procedure for effecting
indemnification) provides the procedure for effecting indemnification. Under
this section unless ordered by a court, any indemnification under Section 1741
(relating to third party actions) or 1742 (relating to derivative actions) shall
be made by the business corporation only as authorized in the specific case upon
a determination that indemnification of the representative is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in those sections. The determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the action or proceeding;
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(2) if such quorum is not obtainable, or, if obtainable and a majority
vote of a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
(3) by the shareholders.
Section 1745 of the BCL (relating to advancing expenses) provides that
expenses (including attorneys' fees) incurred in defending any action or
proceeding referred to above may be paid by the business corporation in advance
of the final disposition of the action or proceeding upon receipt of an
undertaking by or on behalf of the representative to repay such amount if it is
ultimately determined that such person is not entitled to be indemnified by the
corporation as authorized by the BCL or otherwise.
Section 1746 of the BCL (relating to supplementary coverage) provides that
the indemnification and advancement of expenses provided by or granted pursuant
to the other sections of the BCL shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under any other by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Section 1746 of the BCL also provides that indemnification referred to
above shall not be made in any case where the act or failure to act giving rise
to the claim for indemnification is determined by a court to have constituted
willful misconduct or recklessness.
Section 1746 further declares that indemnification under any by-law,
agreement, vote of shareholders or directors or otherwise, may be granted for
any action taken or any failure to take any action and may be made whether or
not the corporation would have the power to indemnify the person under any other
provision of law except as provided in this section and whether or not the
indemnified liability arises or arose from any threatened, pending or completed
action by or in the right of the corporation. Such indemnification is declared
to be consistent with the public policy of the Commonwealth of Pennsylvania.
Section 1747 of the BCL (relating to the power to purchase insurance)
provides that unless otherwise restricted in its by-laws, a business corporation
shall have power to purchase and maintain insurance on behalf of any person who
is or was a representative of the corporation or is or was serving at the
request of the corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust or
other enterprise 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 him against that liability under
the provisions of the BCL. Such insurance is declared to be consistent with the
public policy of the Commonwealth of Pennsylvania.
Section 1750 of the BCL (relating to duration and extent of coverage)
declares that the indemnification and advancement of expenses provided by, or
granted pursuant to, the BCL shall,
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unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a representative of the corporation and shall inure to the
benefit of the heirs and personal representative of that person.
Section A of Article XIII of the Company's Articles of Incorporation and
Section 7-1 of Article VII of the Company's By-laws provide that the Company
shall indemnify, to the fullest extent now or hereafter permitted by law, each
director or officer (including each former director or officer) of the Company
who was or is made a party to or a witness in or is threatened to be made a
party to or a witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was an authorized representative of the Company,
against all expenses (including attorney's fees and disbursements), judgments,
fines (including excise taxes and penalties) and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding.
Section B of the Company's Articles of Incorporation and Section 7-2 of
Article VII of the Company's By-laws provide that the Company shall pay expenses
(including attorneys' fees and disbursements) incurred by a director or officer
of the Company referred to in Section A and Section 7-1, respectively, thereof,
in defending or appearing as a witness in any civil or criminal action, suit or
proceeding described in Section A and Section 7-1, respectively, thereof in
advance of the final disposition of such action, suit or proceeding. The
expenses incurred by such director officer shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding referred to
in such Section C or Section 73 in advance of the final disposition of such
action, suit or proceeding only upon receipt of an undertaking by or on behalf
of such director pr officer to repay all amounts advanced if it shall be
determined that he is not entitled to be indemnified by the Company.
Section C of Article XIII of the Company's Articles of Incorporation and
Section 7-3 of Article VII of the Company's By-laws provide that the Company
may, as determined by the Board of Directors from time to time, indemnify to the
fullest extent now or hereafter permitted by law, any person who was or is a
party to or a witness in or is threatened to be made a party to or a witness in,
or is otherwise involved in, any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was an authorized representative of the
Company, both as to action is his official capacity and as to action in another
capacity while holding such office or position, against all expenses (including
attorney's fees and disbursements), judgments, fines (including excise taxes and
penalties), and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding. The Company may, as
determined by the Board of Directors from time to time, pay expenses incurred by
any such person by reason of his participation in an action, suit or proceeding
upon receipt of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company.
Section D Article XIII of the Company Articles of Incorporation and Section
7-4 of Article VII of the Company's By-laws provide that indemnification under
such Articles is provided pursuant to Section 8365 of the Pennsylvania
Director's Liability Act (or successor provision or statute) and such Articles
are intended to provide indemnification in accordance with their terms whether
the
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Company would have the power to so indemnify under any other provision of law
except such Act and whether or not the indemnified liability arises or arose
from any threatened, pending or completed action by or in the right of the
Company; indemnification under such provisions shall not be made by the Company
in any case where the alleged act or failure to act giving rise to the claim for
indemnification is expressly prohibited by the Pennsylvania Director's Liability
Act or any successor statue as in effect at the time of such alleged action or
failure to take action.
Section E of Article XIII of the Company's Articles of Incorporation and
Section 7-5 of Article VII of the Company's By-laws provide that the Company
shall have the power to purchase and maintain insurance on behalf of any
authorized representative of the Company 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 Company would have the power to indemnify him against
such liability. The Board of Directors, without further approval of the
shareholders, shall have the power to borrow money on behalf of the Company,
including the power to pledge the assets of the Company, from time to time, to
discharge the Company's obligations with respect to indemnification and the
advancement and reimbursement of expenses, and the purchase and maintenance of
insurance on behalf of each director and officer against any liability asserted
against or incurred by such director or officer in any capacity.
Finally, Section F of Article XIII of the Company's Articles of
Incorporation and Section 7-6 of Article VII of the Company's By-laws provide
that each director and officer of the Company shall be deemed to act in such
capacity in reliance upon such rights of indemnification and advancement of
expenses. The rights of indemnification and advancement of expenses provided
shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement or expenses may be entitled under any agreement,
vote of shareholders or disinterested directors, statute or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office or position, and shall continue as to a
person who has ceased to be an authorized representative of the Company and
shall inure to the benefit of the heirs, executors and administrators of such
person. Any repeal or modification such Articles or By-laws by the shareholders
or the Board of Directors of the Company shall not adversely affect any right or
protection existing at the time of such repeal or modification to which any
person may be entitled under such Articles or By-laws.
The Company maintains insurance insuring its directors, officer, employees
or agents against certain liabilities which they might incur as directors,
officer, employees or agents including, if possible, certain liabilities under
the Securities Act of 1933, as amended (the "1933 Act").
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by 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 a director, officer or controlling person in
connection with the securities being registered, the Registrant will,
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unless in the opinion of its counsel the manner 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 1933 Act
and will be governed by the final adjudication of such issue.
Item 7. Exemption From Registration Claimed
Not applicable.
Items 8. Exhibits
Exhibit No.
3(i) Articles of Incorporation of Sun Bancorp, Inc., as amended and
restated. (Incorporated by reference to Exhibit 3(i) the Registrant's
Registration Statement No. 333-61237 on Form S-8, filed with
the Commission on August 12, 1998.)
3(ii)Bylaws of Sun Bancorp, Inc., as amended and restated. (Incorporated by
reference to Exhibit 3(ii) the Registrant's Registration Statement No.
333-61237 on Form S-8, filed with the Commission on August 12, 1998.)
4.1 Articles of Incorporation of Sun Bancorp, Inc., as amended and
restated (included at Exhibit 3(i) of this Registration Statement).
4.2 Bylaws of Sun Bancorp, Inc., as amended and restated (included at
Exhibit 3(ii) of this Registration Statement).
4.3 Sun Bancorp, Inc. 1998 Independent Directors Stock Option Plan.
5 Opinion of Shumaker Williams, P.C.
23.1 Consent of Parente, Randolph, Orlando, Carey & Associates.
23.2 Consent of Shumaker Williams, P.C. (contained at Exhibit 5 of this
Registration Statement).
24 Power of Attorney of Directors and Officers (included on Signature
Pages).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
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(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, represent a fundamental
change in the information set forth in the Registration
Statement; and
(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) shall 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 Commission by the Registrant 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 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 the 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, 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.
(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
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public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities, other than the payment of
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 as 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 of 1933
and will be governed by the final adjudication of such issue.
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SIGNATURES
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 Selinsgrove, Commonwealth of Pennsylvania, on
August 3, 1998.
SUN BANCORP, INC.
By: /s/ Fred W. Kelly, Jr.
----------------------------
Fred W. Kelly, Jr.
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Fred W. Kelly, Jr. and Jeffrey E. Hoyt, and each
of them, his true and lawful attorney-in-fact, as agent with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacity, to sign any or all amendments to this Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents 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 and to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully 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 person in the capacities
and on the dates indicated.
Capacity Date
--------- ------
/s/ Fred W. Kelly, Jr.
- ----------------------- President and Chief Executive August 3, 1998
Fred W. Kelly, Jr. Officer; Director
/s/ Jeffrey E. Hoyt
- ----------------------- Executive Vice President; Chief August 3, 1998
Jeffrey E. Hoyt Operating Officer; Secretary and
Director
<PAGE>
/s/ Max E. Bingaman
- ---------------------- Director August 3, 1998
Max E. Bingaman
/s/ David R. Dieck
- ---------------------- Director August 3, 1998
David R. Dieck
/s/ Louis A. Eaton
- ---------------------- Director August 3, 1998
Louis A. Eaton
/s/ Robert E. Funk
- ---------------------- Director August 3, 1998
Dr. Robert E. Funk
/s/ Stephen J. Gurgovits
- ----------------------- Director August 3, 1998
Stephen J. Gurgovits
/s/ Thomas B. Hebble
- ----------------------- Director August 3, 1998
Thomas B. Hebble
/s/ Robert A. Hormell
- ----------------------- Director August 3, 1998
Robert A. Hormell
/s/ Paul R. John
- ----------------------- Director August 3, 1998
Paul R. John
/s/ George F. Keller
- ----------------------- Director August 3, 1998
George F. Keller
/s/ Lehman B. Mengel
- ----------------------- Director August 3, 1998
Lehman B. Mengel
/s/ F. Keller
- ----------------------- Director August 3, 1998
Howard H. Schnure
/s/ Marlin T. Sierer
- ----------------------- Director August 3, 1998
Marlin T. Sierer
<PAGE>
/s/ Jerry A. Soper
- ----------------------- Director August 3, 1998
Jerry A. Soper
/s/ Dennis J. Vank
- ----------------------- Director August 3, 1998
Dennis J. Van
<PAGE>
Exhibit Index
Page Number
In Sequential
Numbering
Exhibit No. System
- ----------- ----------
3(i) Articles of Incorporation of Sun Bancorp, Inc.,
as amended and restated. (Incorporated by reference
to Exhibit 3(i) the Registrant's Registration Statement
No. 333-61237 on Form S-8, filed with the Commission
on August 12, 1998.)
3(ii)Bylaws of Sun Bancorp, Inc., as amended and restated.
(Incorporated by reference to Exhibit 3(ii) the
Registrant's Registration Statement No. 333-61237 on
Form S-8, filed with the Commission on August 12, 1998.)
4.1 Articles of Incorporation of Sun Bancorp, Inc., as
amended and restated (included at Exhibit 3(i) of this
Registration Statement).
4.2 Bylaws of Sun Bancorp, Inc., as amended and restated
(included at Exhibit 3(ii) of this Registration Statement).
4.3 Sun Bancorp, Inc. 1998 Independent Directors Stock 18
Option Plan.
5 Opinion of Shumaker Williams, P.C. 24
23.1 Consent of Parente, Randolph, Orlando, Carey & Associates. 27
23.2 Consent of Shumaker Williams, P.C. (contained at Exhibit
5 of this Registration Statement).
24 Power of Attorney of Directors and Officers (included 28
on Signature Pages).
EXHIBIT 4.3
SUN BANCORP, INC.
1998 INDEPENDENT DIRECTORS STOCK OPTION PLAN
<PAGE>
SUN BANCORP, INC.
1998 INDEPENDENT DIRECTORS STOCK OPTION PLAN
1. Purpose. The 1998 Independent Directors Stock Option Plan (the "Plan")
was established to advance the development, growth and financial condition of
Sun Bancorp, Inc. (the "Corporation") and its subsidiaries, by providing an
incentive, through participation in the appreciation of the capital stock of the
Corporation, and thereby securing, retaining and motivating members of the
Corporation's Board of Directors who are not officers or employees of the
Corporation or any subsidiary thereof ( the "non-employee directors").
2. Term. The Plan shall become effective as of the date the Corporation's
shareholders duly approve the Plan (the "Effective Date"). If the Plan is so
approved, it shall continue in effect until any stock options granted under the
Plan have either lapsed or been exercised, satisfied or canceled according to
their terms.
3. Stock. The shares of the Corporation's common stock (the "Common Stock")
issuable under the Plan shall not exceed 105,000 shares. The amount of Common
Stock issuable under the Plan may be adjusted pursuant to Section 10 hereof. The
Common Stock issuable hereunder may be either authorized and unissued shares of
Common Stock, or authorized shares of Common Stock issued by the Corporation and
subsequently reacquired by it as treasury stock, or shares purchased in open
market transactions. Under no circumstances shall fractional shares be issued
under the Plan. The Corporation's failure to obtain any governmental authority
deemed necessary by the Corporation's legal counsel for the proper grant of the
stock options under this Plan and/or the issuance of Common Stock under the Plan
shall relieve the Corporation of any duty or liability for the failure to grant
stock options under the Plan and/or issue Common Stock under the Plan as to
which such authority has not been obtained.
4. Stock Options. Stock options shall be granted under the Plan to each
non-employee director of the Corporation, annually, on the first business day of
January, with the first award of options to be made hereunder on January 2,
1999. Each non employee director who is a member of the Corporation's Board of
Directors on the grant date shall be awarded stock options to purchase 750
shares of Common Stock (the "Stock Options") under the following terms and
conditions:
(a) The time period during which any Stock Option is exercisable shall be
ten (10) years after the date of grant.
(b) If a director, who has received an award pursuant to the Plan, ceases
to be a member of the Board of Directors for any reason, the director
may exercise the Stock Option not more than twelve (12) months after
such cessation. If a director, who has received an award pursuant to
the Plan dies, the director's qualified personal representative, or
any person who acquires a Stock Option pursuant to the director's Will
or the laws of descent and distribution, may exercise such Stock
Option during its remaining term for a period of not
1
<PAGE>
more than twelve (12) months after the director's death to the extent
that the Stock Option would then be and remains exercisable.
(c) The purchase price of a share of Common Stock subject to a Stock
Option shall be the fair market value of the Common Stock on the date
of grant, as determined under Section 6 hereof.
(d) The Stock Option shall be made by a written agreement in the form,
attached hereto as Exhibit "A," with such changes therein as may be
determined by the Committee ( as such term is defined in Section 12
hereof) (the "Stock Option Agreement").
5. Exercise. Except as otherwise provided in the Plan, a Stock Option may
be exercised in whole or in part by giving written notice thereof to the
Secretary of the Corporation, or his designee, identifying the Stock Option
being exercised, the number of shares of Common Stock with respect thereto, and
other information pertinent to the exercise of the Stock Option. The purchase
price of the shares of Common Stock with respect to which a Stock Option is
exercised shall be paid with the written notice of exercise, either in cash or
in Common Stock, which has been held by the director for at least six (6)
months, at its then current fair market value, or any combination of cash or
Common Stock. Funds received by the Corporation from the exercise of any Stock
Option shall be used for its general corporate purposes. The number of shares of
Common Stock subject to a Stock Option shall be reduced by the number of shares
of Common Stock with respect to which the director has exercised rights under
the related Stock Option Agreement.
If the Corporation or its shareholders execute an agreement to dispose of
all or substantially all of the Corporation's assets or capital stock by means
of sale, merger, consolidation, reorganization, liquidation or otherwise, as a
result of which the Corporation's shareholders as of immediately before such
transaction will not own at least fifty percent (50%) of the total combined
voting power of all classes of voting capital stock of the surviving entity (be
it the Corporation or otherwise) immediately after the consummation of such
transaction, thereupon any and all outstanding Stock Options shall immediately
become exercisable until the consummation of such transaction, or if not
consummated, until the agreement therefor expires or is terminated, in which
case thereafter all Stock Options shall be treated as if the agreement never had
been executed. If during any period of two (2) consecutive years, the
individuals, who at the beginning of such period, constituted the Board of
Directors, cease for any reason to constitute at least a majority of the Board
of Directors (unless the election of each director of the Board of Directors,
who was not a director of the Board of Directors at the beginning of such
period, was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) thereupon
any and all outstanding Stock Options shall immediately become exercisable. If
there is an actual, attempted or threatened change in the ownership of at least
twenty-five percent (25%) of any class of voting stock of the Corporation
through the acquisition of, or an offer to acquire, such percentage of the
Corporation's voting stock by any person or entity, or persons or entities
acting in concert or as a group, and such acquisition or offer has not been duly
approved by the Board of Directors, thereupon any and all outstanding Stock
Options shall immediately become exercisable.
2
<PAGE>
6. Value. Where used in the Plan, the "fair market value" of Common Stock
shall mean and be determined as follows: (i) in the event that the Common Stock
is listed on an established exchange, the closing price of the Common Stock on
the date when the Stock Option is granted to the Director (the "Relevant Date")
or, if no trade occurred on that day, on the next preceding day on which a trade
occurred; or (ii) in the event that the Common Stock is not listed on an
established exchange, but is then quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ"), the average of the
average of the closing bid and asked quotations of the Common Stock for the five
(5) trading days immediately preceding the Relevant Date. In either case, in the
event that no closing bid or asked quotation is available on one (1) or more of
such trading days, the fair market value shall be determined by reference to the
five (5) trading days immediately preceding the Relevant Date on which closing
bid and asked quotations are available.
7. Continued Relationship. Nothing in the Plan or in any Stock Option shall
confer upon any director any right to continue his relationship with the
Corporation as a director, or limit or affect any rights, powers or privileges
that the Corporation or its affiliates may have to supervise, discipline and
terminate such director, and the relationships thereof.
8. General Restrictions. The Board of Directors may require, in its
discretion, (a) the listing, registration or qualification of the Common Stock
issuable pursuant to the Plan on any securities exchange or under any federal or
state securities or other laws, (b) the approval of any governmental authority,
or (c) an execution of an agreement by any director with respect to disposition
of any Common Stock (including, without limitation, that at the time of the
director's exercise of the Stock Option, any Common Stock thereby acquired is
being and will be acquired solely for investment purposes and without any
intention to sell or distribute the Common Stock). If the Board of Directors so
requires, then Stock Options shall not be exercised, in whole or in part, unless
such listing, registration, qualification, approval or agreement has been
appropriately effected or obtained to the satisfaction of the Board of Directors
and legal counsel for the Corporation. Notwithstanding anything to the contrary
herein, a director shall not sell, transfer or otherwise dispose of any shares
of Common Stock acquired pursuant to a Stock Option unless at least six (6)
months have elapsed from the date the Stock Option was granted and, in any
event, the transfer or disposition is made in accordance with Section 16 of the
Securities Exchange Act of 1934, as amended, and as the same may be amended from
time to time.
9. Rights. Except as otherwise provided in the Plan, a director shall have
no rights as a holder of the Common Stock subject to a Stock Option unless and
until one or more certificates for the shares of Common Stock are issued and
delivered to the director. No Stock Option, or the grant thereof, shall limit or
affect the right or power of the Corporation or its affiliates to adjust,
reclassify, recapitalize, reorganize or otherwise change its or their capital or
business structure, or to merge, consolidate, dissolve, liquidate or sell any or
all of its or their business, property or assets.
10. Adjustments. In the event that the shares of Common Stock of the
Corporation, as presently constituted, shall be changed into or exchanged for a
different number or kind of shares of Common Stock or other securities of the
Corporation or of other securities of the Corporation or of another corporation
(whether by reason of merger, consolidation, recapitalization, reclassification,
split-up, combination of shares or otherwise) or if the number of such shares of
Common Stock shall
3
<PAGE>
be increased through the payment of a stock dividend, stock split or similar
transaction, then, there shall be substituted for or added to each share of
Common Stock of the Corporation that was theretofore appropriated, or that
thereafter may become subject to a Stock Option under the Plan, the number and
kind of shares of Common Stock or other securities into which each outstanding
share of the Common Stock of the Corporation shall be so changed or for which
each such share shall be exchanged or to which each share shall be entitled, as
the case may be. Each outstanding Stock Option shall be appropriately amended as
to price and other terms, as may be necessary to reflect the foregoing events.
If there shall be any other change in the number or kind of the outstanding
shares of Common Stock of the Corporation, or of any Common Stock or other
securities into which such Common Stock shall have been changed, or for which it
shall have been exchanged, and if a majority of the members of the Board of
Directors shall, in their sole discretion, determine that the change equitably
requires an adjustment in any Stock Option that was theretofore granted or that
may thereafter be granted under the Plan, then such adjustment shall be made in
accordance with the determination.
The grant of a Stock Option pursuant to the Plan shall not affect, in any
way, the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure, to merge, to consolidate, to dissolve, to liquidate or to sell or
transfer all or any part of its business or assets.
Fractional shares resulting from any adjustment in a Stock Option pursuant
to this Section 10 may be settled as a majority of the members of the Board of
Directors shall determine.
To the extent that the foregoing adjustments relate to Common Stock or
securities of the Corporation, such adjustments shall be made by a majority of
the members of the Board of Directors, whose determination in that respect shall
be final, binding and conclusive. Notice of any adjustment shall be given by the
Corporation to each holder of a Stock Option that is so adjusted.
11. Forfeiture. Notwithstanding anything to the contrary in this Plan, if
an option holder is engaged in fraud, embezzlement, theft, commission of a
felony, or dishonesty in the course of his relationship with the Corporation or
its affiliates, or has disclosed trade secrets of the Corporation or its
affiliates, the option holder shall forfeit all rights under and to all
unexercised Stock Options, and all exercised Stock Options for which the
Corporation has not yet delivered certificates for shares of Common Stock, and
all rights to receive Stock Options shall be automatically canceled.
12. Administration. The ability to control and manage the operation and
administration of the Plan shall be vested in the Board of Directors or in a
committee of two or more members of the Board of Directors, selected by the
Board of Directors (the "Committee"). The Committee shall have the authority and
discretion to interpret the Plan, to establish, amend and rescind any rules and
regulations relating to the Plan, to determine the terms and provisions of any
agreements made pursuant to the Plan, and to make any and all determinations
that may be necessary or advisable for the administration of the Plan. Any
interpretation of the Plan by the Committee and any decision made by it under
the Plan is final and binding.
4
<PAGE>
13. Miscellaneous. Any reference contained in this Plan to a particular
section or provision of law, rule or regulation shall include any subsequently
enacted or promulgated section or provision of law, rule or regulation, as the
case may be. With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934, as amended, transactions under this Plan are intended to
comply with all applicable conditions of the Rule and the regulations
promulgated thereunder or any successor rule that may be promulgated by the
Securities and Exchange Commission. To the extent any provision of this Plan
fails to so comply, it shall be deemed null and void, to the extent permitted by
applicable law, subject to the provisions of Section 15, below. Where used in
this Plan, the plural shall include the singular, and, unless the context
otherwise clearly requires, the singular shall include the plural and the
masculine shall include the feminine. The captions of the numbered Sections
contained in this Plan are for convenience only, and shall not limit or affect
the meaning, interpretation or construction of any of the provisions of the
Plan.
14. Transferability. Except as otherwise provided by the Board of
Directors, Stock Options granted under the Plan are not transferable except as
designated by the participant by will and the laws of descent and distribution.
15. Amendment. The Plan may be amended, suspended or terminated, without
notice, by a majority vote of the Board of Directors of the Corporation.
16. Taxes. The issuance of shares of Common Stock under the Plan shall be
subject to any applicable taxes or other laws or regulations of the United
States of America and any state or local authority having jurisdiction there
over.
- - - - - - -
END
- - - - - - -
EXHIBIT 5
OPINION OF SHUMAKER WILLIAMS, P.C.
<PAGE>
SHUMAKER WILLIAMS, P.C.
3425 SIMPSON FERRY ROAD
P. O. BOX 88
HARRISBURG, PENNSYLVANIA 17108
717-763-1121
August 3, 1998
Fred W. Kelly, Jr.
President and Chief Executive Officer
Sun Bancorp, Inc.
2-16 South Market Street
Selinsgrove, Pennsylvania 17870
RE: Sun Bancorp, Inc. (the "Corporation")
Registration Statement Form S-8
Our File No.: 235-98
Dear Mr. Kelly:
We have acted as Special Corporate Counsel to the Corporation in connection
with preparation of the Corporation's Registration Statement on Form S-8
relating to the Corporation's 1998 Independent Directors Stock Option Plan (the
"Plan").
In connection with this matter, we, as counsel to the Corporation, have
reviewed the following:
1. the Pennsylvania Business Corporation Law of 1988, as amended;
2. the Corporation's Articles of Incorporation; as amended and restated;
3. the Corporation's By-Laws; as amended and restated;
4. Resolutions adopted by the Corporation's Board of Directors on
February 9, 1998; and
5. the Plan.
Based upon such review, it is our opinion that the Corporation's common
stock, no par value, (the "Common Stock") issuable under the Plan, when and as
issued in accordance with the provisions of the Plan, will be duly and validly
issued, fully paid and nonassessable. In giving the foregoing opinion, we have
assumed that the Corporation will have, at the time of the issuance of Common
Stock under the Plan, a sufficient number of authorized shares available for
issue.
<PAGE>
Fred W. Kelly, Jr.
Sun Bancorp, Inc.
August 3, 1998
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement on Form S-8, filed by the Corporation, relating to the
Plan.
Very truly yours,
SHUMAKER WILLIAMS, P.C.
By: /s/ B. Tyler Lincoln
---------------------------
B. Tyler Lincoln
BTL\kec
cc: Nicholas Bybel, Jr., Esquire
EXHIBIT 23.2
CONSENT OF PARENTE, RANDOLPH, ORLANDO,
CAREY & ASSOCIATES
<PAGE>
PARENTE, RANDOLPH, ORLANDO,
CAREY & ASSOCIATES
- ---------------------------
CONSULTANTS & ACCOUNTANTS
Consent of Independent Auditors
The Board of Directors
Sun Bancorp, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-8 relating to the Sun Bancorp, Inc. 1998 Independent Directors Stock
Option Plan of our report dated January 30, 1998, which appears on page 27 of
the Sun Bancorp, Inc. Annual Report to Shareholders for the year ended December
31, 1997, and relates to the consolidated balance sheet of Sun Bancorp, Inc. and
subsidiaries as of December 31, 1997, and 1996, and the related consolidated
statements of income, changes in shareholders' equity and cash flows for each of
the three years in the period ended Decmeber 31, 1997.
/s/ Parente, Randolph, Orlando, Carey & Associates
--------------------------------------------------
Parente, Randolph, Orlando, Carey & Associates
August 4, 1998
Williamsport, Pennsylvania
