<PAGE> 1
As filed with the Securities and Exchange Commission on June 28, 2000
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUN BANCORP, INC.
(Exact Name of Registrant As Specified In Its Charter)
PENNSYLVANIA 23-2233584
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2-16 SOUTH MARKET STREET, SELINSGROVE, PA 17870
(Address of principal executive offices) (Zip Code)
SUN BANCORP, INC. 401(k) PLAN
(Full title of the plan)
<TABLE>
<S> <C>
FRED W. KELLY, JR., PRESIDENT Copies To:
SUN BANCORP, INC. NICHOLAS BYBEL, JR., ESQUIRE
2-16 SOUTH MARKET STREET B. TYLER LINCOLN, ESQUIRE
SELINSGROVE, PA 17870 SHUMAKER WILLIAMS, P.C.
(717) 374-1131 POST OFFICE BOX 88
(Name, address, including zip code, and telephone HARRISBURG, PENNSYLVANIA 17108
number, including area code, of agent for service) (717) 763-1121
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
---------- ------------- ------------ ----------------- ---
<S> <C> <C> <C>
Common Stock 100,000 $15.13 $1,512,500 $339.30
No Par Value
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), based on the average of the high and low
prices for the Common Stock reported by the NASDAQ National Market on
June 26, 2000.
(2) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the Plan that are
covered by this Registration Statement.
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminable amount of
interests to be offered or sold pursuant to the Plan described herein.
<PAGE> 2
EXPLANATORY NOTE
This registration statement relates to the Sun Bancorp, Inc. 401(k)
Plan and the offer and sale of the common stock, no par value per share, of Sun
Bancorp, Inc., pursuant to the plan, together with an indeterminable number of
interests in the plan that may be purchased with contributions under the plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended. These documents and the
documents incorporated by reference in this registration statement, pursuant to
Item 3 of Part II, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We incorporate the following documents by reference into this
registration statement as filed with the SEC:
- Sun's Annual Report on Form 10-K for the year ended December
31, 1999, filed with the Commission on March 30, 2000, and as
amended on April 4, 2000;
- Sun's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, filed with the Commission on May 15, 2000;
- Sun's Current Report on Form 8-K, filed with the Commission on
April 4, 2000;
- Sun's Current Report on Form 8-K, filed with the Commission on
June 2, 2000; and
- Description of Sun's common stock that appears at pages 15 and
16 of Sun's prospectus, which forms a part of Sun's
Registration Statement No. 333-30723, filed with the
Commission on July 3, 1997.
2
<PAGE> 3
In addition, all documents filed by Sun Bancorp, Inc. pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after
the date of this prospectus and prior to the termination of the offering made
hereby are incorporated by reference into this registration statement and become
a part hereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference in this
registration statement shall modify or supersede the prospectus to the extent
that a statement contained in this registration statement or in any other
subsequently filed document that is also or is deemed to be incorporated by
reference modifies or supersedes the statement. Only modified or superseded
statements constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subchapter D of Chapter 17 of the Pennsylvania Business Corporation Law
of 1988, (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:
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<PAGE> 4
(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.
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
4
<PAGE> 5
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 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.
5
<PAGE> 6
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;
(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.
6
<PAGE> 7
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
Commonwealth of Pennsylvania's public policy.
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, 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.
Articles 23 and 24 of the By-laws of the Registrant provide a broad
range of indemnification for its officers and directors. In essence, officers
and directors will be indemnified for any act committed while in the course of
their association with the Registrant provided that the act was in good faith
and in a manner reasonably believed to be in, or not opposed to the best
interest of the Registrant. Officers and directors will be presumed to be
entitled to indemnification, absent branches of fiduciary duty, lack of good
faith or self-dealing and shall be entitled to indemnification unless their
conduct is determined by a court to have constituted willful misconduct or
recklessness.
Insofar as indemnification for liabilities arising under the Securities
Act of (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, 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
7
<PAGE> 8
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.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<S> <C>
4.1 Articles of Incorporation of Sun Bancorp, Inc., as amended and
restated (incorporated by reference to Exhibit 3(i) of Sun's
Registration Statement No. 333-61237, filed with the
Commission on August 12, 1998).
4.2 Bylaws of Sun Bancorp, Inc., as amended and restated
(incorporated by reference to Exhibit 3(ii) of Sun's
Registration Statement No. 333- 61237, filed with the
Commission on August 12, 1998).
5 Opinion of Shumaker Williams, P.C.
23.1 Consent of Parente Randolph.
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).
99.1 Sun Bancorp, Inc. 401(k) Plan.
99.2 Summary Plan Description.
99.3 Internal Revenue Service Determination Letter.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(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;
8
<PAGE> 9
(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;
(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 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
by the registrant with the
Commission 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 that
time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of
1934, 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
9
<PAGE> 10
Commission such indemnification is against 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 by the registrant of expenses
incurred or paid by a director, officer or
controlling person of the registrant in the
successful defense of any action suit or proceeding
is asserted by such director, officer or controlling
person in connection with the securities being
registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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<PAGE> 11
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 June 22,
2000.
SUN BANCORP, INC.
By: /s/ Fred W. Kelly, Jr.
-----------------------------
Fred W. Kelly, Jr.
Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Fred W. Kelly, Jr., 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, will 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 persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Capacity Date
-------- ----
<S> <C> <C>
/s/ Fred W. Kelly, Jr. Chairman and Chief June 22, 2000
------------------------------ Executive Officer; Director
Fred W. Kelly, Jr.
/s/ Robert J. McCormack President and Chief June 22, 2000
------------------------------ Operating Officer
Robert J. McCormack
/s/ Max E. Bingaman Director June 22, 2000
------------------------------
Max E. Bingaman
/s/ David R. Dieck Director June 22, 2000
------------------------------
David R. Dieck
</TABLE>
<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ Louis A. Eaton Director June 22, 2000
------------------------------
Louis A. Eaton
/s/ Dr. Robert E. Funk Director June 22, 2000
------------------------------
Dr. Robert E. Funk
/s/ Stephen J. Gurgovits Director June 22, 2000
------------------------------
Stephen J. Gurgovits
/s/ Thomas B. Hebble Director June 22, 2000
------------------------------
Thomas B. Hebble
/s/ Thomas A. Hormell Director June 22, 2000
------------------------------
Thomas A. Hormell
/s/ Paul R. John Director June 22, 2000
------------------------------
Paul R. John
/s/ George F. Keller Director June 22, 2000
------------------------------
George F. Keller
/s/ Lehman B. Mengel Director June 22, 2000
------------------------------
Lehman B. Mengel
/s/ Howard H. Schnure Director June 22, 2000
------------------------------
Howard H. Schnure
/s/ Marlin T. Sierer Director June 22, 2000
------------------------------
Marlin T. Sierer
/s/ Dennis J. Van Director June 22, 2000
------------------------------
Dennis J. Van
</TABLE>
<PAGE> 13
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<S> <C>
4.1 Articles of Incorporation of Sun Bancorp, Inc., as amended and
restated (incorporated by reference to Exhibit 3(i) of Sun's
Registration Statement No. 333-61237, filed with the
Commission on August 12, 1998).
4.2 Bylaws of Sun Bancorp, Inc., as amended and restated
(incorporated by reference to Exhibit 3(ii) of Sun's
Registration Statement No. 333-61237, filed with the
Commission on August 12, 1998.).
5 Opinion of Shumaker Williams, P.C.
23.1 Consent of Parente Randolph.
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).
99.1 Sun Bancorp, Inc. 401(k) Plan.
99.2 Summary Plan Description.
99.3 Internal Revenue Service Determination Letter.
</TABLE>
