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
---------
(Zip Code)
SUN BANCORP, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------------------
(Full title of the plan)
Fred W. Kelly, Jr., President
SUN BANCORP, INC.
2-16 South Market Street
Selinsgrove, Pennsylvania 17870
(717) 374-1131
--------------------------------------------------
(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
<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 225,000 $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, $6,581,250.00 $1,941.47
No Par Value
<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 32 Sequentially Numbered Pages
Index to Exhibits Found on Page 16
<PAGE>
TO PARTICIPANTS IN THE SUN BANCORP, INC.
1998 EMPLOYEE STOCK PURCHASE 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
Employee Stock Purchase 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 Employee Stock Purchase 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
-----------------------------
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
- ----------------------- Officer; Director
Fred W. Kelly, Jr.
/s/ Jeffrey E. Hoyt Executive Vice President; Chief August 3, 1998
- ----------------------- Operating Officer; Secretary and
Jeffrey E. Hoyt 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/ Howard H. Schnure
- ------------------------ 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. Van
- ------------------------ 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) of 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) of 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 Employee Stock Purchase Plan. 18
5 Opinion of Shumaker Williams, P.C. 26
23.1 Consent of Parente, Randolph, Orlando, Carey & Associates. 29
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 30
on Signature Pages).
EXHIBIT 4.3
SUN BANCORP, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
SUN BANCORP, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan. The purpose of this Employee Stock Purchase Plan (the
"Plan") is to advance the interests of Sun Bancorp, Inc., its subsidiary
and its shareholders by encouraging its employees and the employees of its
subsidiary to acquire a stake in its future by purchasing shares of its
common stock. The Plan is intended to be an employee stock purchase plan
within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended.
2. Definitions. For purposes of the Plan, the following words or phrases have
the meanings assigned to them below:
(a) Board: means the Board of Directors of the Corporation.
(b) Code: means the Internal Revenue Code of 1986, as amended.
(c) Committee: means the Committee designated by the Board to administer
the Plan, which Committee shall at all times consist of two or more
non-employee directors (within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder or any successor statute, rule or
regulation).
(d) Corporation: means Sun Bancorp, Inc.
(e) Date of Grant: means, in respect of any option granted under the Plan,
the date on which that option is granted by the Committee.
(f) Date of Exercise: means, in respect of any option granted under the
Plan, the date specified by the Committee in its rules and regulations
governing the exercise of options granted under the Plan.
(g) NASDAQ: means the National Association of Securities Dealers, Inc.
Automated Quotation System.
(h) Parent: means any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation if, at the
time of the grant of an option, each of the corporations other than
the Corporation owns stock possessing 50 percent (50%) or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
(i) Plan: means Sun Bancorp, Inc. 1998 Employee Stock Purchase Plan.
(j) Stock: means the common stock of the Corporation.
1
<PAGE>
(k) Subsidiary: means any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation if, at
the time of the grant of an option under the Plan, each of the
corporations other than the last corporation in the unbroken chain
owns stock possessing 50 percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
(l) Total Compensation: means the total remuneration paid to an
employee by the Corporation and its Subsidiary during any
calendar year, as reported on the employee's federal income tax
withholding statement(s) on Form W-2 ( or any successor form) in
respect of that calendar year.
3. Administration of the Plan.
(a) Committee Members. The Plan shall be administered by the Committee
which, except as otherwise determined by the Board, shall be composed
of members of the Board who are not employees of the Corporation.
(b) Committee Authority. The Committee shall be vested with full authority
to grant options under the Plan, to adopt, amend and rescind such
rules, regulations and procedures as it deems necessary or desirable
to administer the Plan, to interpret the provisions of the Plan, and
to make all other determinations necessary in connection with the
administration of the Plan. Any determination, decision or action of
the Committee in connection with the construction, interpretation,
administration or application of the Plan shall be final, conclusive
and binding. No member of the Committee or of the Board shall be
liable for any determination, decision or action made in good faith
with respect to the Plan or any option granted under the Plan.
4. Stock Subject to the Plan. The maximum number of shares of Stock that may
be issued pursuant to options granted under the Plan shall be 225,000
shares of stock, subject to adjustment as provided in Section 11 of the
Plan. Such shares may be treasury or authorized, but unissued, shares of
Stock. Shares issuable pursuant to an option which, by reason of the
expiration, cancellation or other termination of such option prior to
issuance, are not issued shall again be available for issuance pursuant to
the award of options under the Plan.
5. Eligibility. Options may be granted under the Plan only to employees of the
Corporation and to employees of a Subsidiary. Employees of the Corporation
and employees of a Subsidiary, who were employed by the Corporation or by a
Subsidiary on December 31 of the year immediately preceding the year in
which options are granted, shall be eligible to receive options under the
Plan, except that the Committee may elect to exclude those employees: (a)
who customarily work twenty (20) hours or less per week; (b) who have been
employed less than two (2) years; and (c) who customarily work for not more
than five (5) months in a calendar year.
2
<PAGE>
6. Allocation of Optioned Stock.
(a) General Rule: When options are granted under the Plan, options shall
be granted to each eligible employee, and all eligible employees shall
have the same rights and privileges, except that the number of shares
subject to each option may bear a uniform relationship to the Total
Compensation, or the basic or regular rate of compensation, of all
eligible employees, and the Committee may limit the maximum number of
shares that may be purchased pursuant to each option, provided that
such limitation is uniform for all eligible employees.
(b) Certain Limitations: All options granted under the Plan shall be
subject to the following additional limitations:
(i) Five Percent Limitation: No option shall be granted to any
employee who, immediately after the grant, would own stock
possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Corporation, its
Parent (if any) or any Subsidiary. In computing the stock
ownership of an employee for purposes of this limitation, the
rules of Section 424(d) of the Code shall apply, and stock which
an employee may purchase pursuant to options granted by the
Corporation (whether under the Plan or otherwise) shall be
treated as stock owned by the employee.
(ii) $25,000 Limitation: No option shall be granted to any employee
which, at the Date of Grant, would permit his rights to purchase
Stock under the Plan and all other employee stock purchase plans
of the Corporation, its Parent (if any) and any Subsidiary to
accrue at a rate exceeding $25,000 of fair market value for each
calendar year in which such option is outstanding at any time.
7. Option Price.
(a) General Rule: The option price per share of the Stock that may be
purchased pursuant to each option shall be determined by the
Committee, subject to approval by the Board, but shall not in any
event be less than the lessor of: (i) eighty-five percent (85%) of the
fair market value per share of the Stock on the Date of Grant, or (ii)
eighty-five percent (85%) of the fair market value per share of the
Stock on the Date of Exercise, subject in either case to adjustment as
set forth in Section 11 below.
(b) Fair Market Value: For purposes of the Plan, the fair market value of
the Stock shall be determined as follows:
(i) Exchange Traded: In the event that the Stock is listed on an
established stock exchange, the fair market value shall be deemed
to be the closing price of the Stock on such exchange on the
applicable date or, if no trade occurred on that day, on the next
preceding day on which a trade occurred.
3
<PAGE>
(ii) NASDAQ Listed: In the event that the Stock is not listed on an
established stock exchange, but is then quoted on NASDAQ, the
fair market value per share shall be the average of the average
of the closing bid and asked quotations of the Stock for the five
(5) trading days immediately preceding the applicable date,
except that if no closing bid or asked quotation is available on
one or more of such trading days, fair market value shall be
determined by reference to the five (5) trading days immediately
preceding the applicable date on which closing bid and asked
quotations are available.
(iii)OTC Traded: In the event that the Stock is not listed on an
established stock exchange and is not quoted on NASDAQ, the fair
market value per share shall be the average of the average of the
closing bid and asked quotations of the Stock for the five (5)
trading days immediately preceding the applicable date as
reported by two (2) brokerage firms to be selected by the
Committee which are then making a market in the Stock, except
that if no closing bid or asked quotation is available on one or
more of such trading days, fair market value shall be determined
by reference to the five (5) trading days immediately preceding
the applicable date on which closing bid and asked quotations are
available.
(iv) Other: In the event that the Stock is not listed on an
established stock exchange, is not quoted on NASDAQ and no
closing bid and asked quotations are available, then fair market
value per share shall be determined in good faith by the
Committee.
8. Terms and Conditions of Options.
(a) Written Stock Option Agreement: Each option shall be evidenced by a
written stock option agreement specifying the maximum number of shares
of Stock that may be purchased pursuant to the option, the option
term, and other such terms and conditions established by the Committee
as are consistent with the terms of the Plan.
(b) Term of Options: Each option granted under the Plan shall expire on
the date determined by the Committee; provided, however, that each
option shall terminate not later than the date which is 27 months from
the Date of Grant.
(c) Other Terms and Conditions: The Committee may from time to time
establish such further terms, conditions and limitations on the
exercise of options granted under the Plan as it may, in its sole
discretion, deem appropriate, and which are not inconsistent with
Section 423 of the Code, including, without limitation, payroll
deduction requirements, restrictions on exercise dates, and
restrictions on transfer of the Stock purchased pursuant to the
options granted under the Plan.
4
<PAGE>
(d) Termination of Employment: An option granted pursuant to the Plan may
be exercised only while the holder thereof is employed by the
Corporation or a Subsidiary and, if not fully exercised prior to
termination (but excluding termination due to death) of employment,
will expire on the date of termination.
(e) Limitation on Transfer of Options: During the lifetime of an optionee,
an option granted pursuant to the Plan shall be exercisable only by
the optionee and shall not be assignable or transferable by him other
than by will or the laws of descent and distribution.
9. Exercise of Options. Each person who elects to exercise an option granted
pursuant to this Plan shall comply with such rules, regulations and
procedures (including, without limitation, payroll deduction requirements)
regarding the exercise of options as the Committee shall from time to time
establish.
10. Rights. Except as otherwise provided in the Plan, an employee who is
granted an option shall have no rights as a holder of the stock subject
thereto unless and until one or more certificates for the shares of such
stock are issued and delivered to the employee. Except as otherwise
provided in the Plan, no adjustments shall be made for dividends, either
ordinary or extraordinary, or any other distributions with respect to
Corporation's stock, whether made in cash, securities or other property, or
any rights with respect thereto, for which the record date is prior to the
date that any certificates for stock subject to an option are issued to the
employee pursuant to his or her exercise thereof. No 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.
11. Adjustments
(a) Recapitalization: In the event of any change in the number of issued
and outstanding shares of Stock which results from a stock split,
reverse stock split, payment of a stock dividend or any other change
in the capital structure of the Corporation, the Committee shall
proportionately adjust the maximum number of shares subject to each
outstanding option, and (where appropriate) the purchase price per
share thereof (but not the total option price), so that upon exercise
or realization of such option, the employee shall receive the same
number of shares he or she would have received had he or she been the
holder of all shares subject to his or her outstanding option and
immediately before the effective date of such change in the number of
issued and outstanding shares of Stock. Such adjustments shall not,
however, result in the issuance of fractional shares. Any adjustment
under this Section 11 shall be made by the Committee, subject to
approval by the Board. No adjustments shall be made that would cause
an option to fail to continue to qualify as an incentive stock option
within the meaning of Section 423 of the Code.
5
<PAGE>
(b) Merger: In the event the Corporation is a party to any merger,
consolidation or other reorganization, any and all outstanding options
shall apply and relate to the securities to which a holder of stock is
entitled after such merger, consolidation or other reorganization.
Upon any liquidation or dissolution of the Corporation, any and all
outstanding options shall terminate upon consummation of such
liquidation or dissolution, but prior to such consummation shall be
exercisable to the extent that the same otherwise are exercisable
under the Plan.
12. Registration of Stock. No option granted pursuant to the Plan shall be
exercisable in whole or in part if at any time the Committee shall
determine in its discretion that the listing, registration or qualification
of the shares of Stock subject to such option on any securities exchange or
under any applicable law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such option or the issuance of shares
thereunder, unless such listing, registration, qualification, consent or
approval may be effected or obtained on conditions acceptable to the
Committee. Without limiting the foregoing, the shares of Stock to be issued
under the Plan shall be registered as soon as practicable under the
Securities Act of 1933, as amended, by the Corporation by filing an
appropriate registration statement. No option shall be exercisable, no
Stock shall be issued, and no certificates for shares of Stock shall be
delivered until such registration statement is effective.
13. Special Rules Applicable to Reporting Persons. Any eligible employee who is
subject to Section 16 of the Securities Exchange Act of 1934, as amended (a
"Reporting Person") shall not sell, transfer or otherwise dispose of any
shares of Stock acquired pursuant to the exercise of an option granted
under the Plan unless at least six (6) months have elapsed from the Date of
Grant.
14. Amendment or Termination of the Plan.
(a) Amendment and Termination: The Board may at any time amend, modify,
suspend or terminate the Plan; provided that, except as provided in
Section 11 above, the Board may not amend, modify, suspend or
terminate the Plan in a manner that causes loss of the exemption
available under Section 16 (or any Rules promulgated thereunder) under
the Securities Exchange Act of 1934.
(b) Compliance with Section 423 of the Code: Notwithstanding the
provisions of Section 12(a) above, the Board reserves the right to
amend or modify the terms and provisions of the Plan, and of any
outstanding options granted under the Plan, to the extent necessary to
qualify the options granted under the Plan for such favorable federal
income tax treatment (including deferral of taxation upon exercise) as
may be afforded options granted under an employee stock purchase plan
within the meaning of Section 423 of the Code, the regulations
promulgated thereunder, and any amendments or replacements thereof.
6
<PAGE>
(c) 10 Year Term of Plan: Unless previously terminated by the Board, the
Plan shall terminate on, and no options shall be granted after, the
tenth anniversary of the effective date of the Plan, as set forth in
Section 15, below.
15. General Provisions.
(a) Effect on Employment. The grant of an option under the Plan shall not
be construed as giving the holder thereof the right to be retained in
the employ of the Corporation or any Subsidiary. Neither the adoption
of the Plan, its operation, nor any documents describing or referring
to the Plan, including, without limitation, any stock option
agreement, shall in any way affect any right and power of the
Corporation or any Subsidiary to terminate the employment of any
person at any time with or without assigning a reason therefor.
(b) Indemnification. With respect to liabilities arising under or relating
to the Plan, the Corporation shall indemnify each member of the
Committee and each other officer or employee of the Corporation to
whom any duty or power relating to the plan may be allocated or
delegated, to the fullest extent permitted under the laws of the
Commonwealth of Pennsylvania and the Bylaws of the Corporation.
(c) Governing Law. All questions pertaining to construction, validity and
effect of the provisions of the Plan and the rights of all persons
hereunder shall be governed by the laws of the Commonwealth of
Pennsylvania.
(d) Rules of Construction. Headings are given to the sections of the Plan
solely as a convenience to facilitate reference. The reference to any
statute, regulation, or other provisions of law shall be construed to
refer to any amendment to or successor of such provisions of law. All
words herein shall be construed to be of such number and gender as the
context requires.
16. Effective Date. The Plan shall become effective on February 9, 1998, the
date on which it was adopted by the Board, provided that the Plan is
approved by the shareholders of the Corporation at the Annual Meeting on
April 23, 1998. The Committee may issue options pursuant to the Plan prior
to its approval by the shareholders of the Corporation, provided that all
such options are contingent upon shareholder approval of the Plan.
- - - - - - - - - -
E N D
- - - - - - - - - - -
7
EXHIBIT 5
OPINION OF SHUMAKER WILLIAMS, P.C.
<PAGE>
SHUMAKER WILLIAMS, P.C.
3425 Simpson Ferry Road
Camp Hill, Pennsylvania 17011
(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. 240-98
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 Employee Stock Purchase 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 Employee Stock Purchase 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 December 31, 1997.
/s/ Parente, Randolph, Orlando, Carey & Associates
--------------------------------------------------
Parente, Randolph, Orlando, Carey & Associates
August 4, 1998
Williamsport, Pennsylvania
