File No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
------------------------------
STATE BANCORP, INC.
(Exact name of issuer as specified in its charter)
New York 11-2846511
(State of Incorporation) (I.R.S. Employer Identification Number)
2 Jericho Plaza, Jericho, New York 11753
(Address, including zip code, of Principal Executive Offices)
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STATE BANCORP, INC. 1999 INCENTIVE STOCK OPTION PLAN
------------------------------
(Full title of the Plan)
Daniel T. Rowe, President
State Bancorp, Inc.
2 Jericho Plaza
Jericho, New York 11753
(516) 465-2300
(Name and address, telephone number, including area code, of agent for service)
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STATE BANCORP, INC.
CROSS-REFERENCE SHEET
Item # Caption of SEC Form S-8 Caption In Prospectus
- ------ ----------------------- ---------------------
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus Outside Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus Inside Front Cover Page
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges Not Applicable
4. General Information Regarding the Plan THE PLAN -
General Information
5. Securities to be Offered and Employees Who May
Participate in the Plan THE PLAN -
General Information -
Certain Provisions of
Plan
6. Purchase of Securities Pursuant to the Plan THE PLAN -
General Information -
Certain Provisions of
Plan
7. Payment for Securities Offered THE PLAN -
Certain Provisions of
Plan
8. Contributions Under the Plan Not Applicable
9. Withdrawal from the Plan -
Assignment of Interest Not Applicable
10. Defaults Under the Plan Not Applicable
11. Administration of the Plan THE PLAN -
Certain Provisions of
Plan - Administration
12. Investment of Funds Not Applicable
13. Charges and Deductions and Liens Therefor Not Applicable
14. Description of Registrant's Securities DESCRIPTION OF COMMON
STOCK
15. Incorporation of Certain Documents by Reference INCORPORATION OF
CERTAIN DOCUMENTS BY
REFERENCE
16. Additional Information ADDITIONAL INFORMATION
17. Interests of Named Experts and Counsel LEGAL OPINION - EXPERTS
18. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities INDEMNIFICATION OF
DIRECTORS AND OFFICERS
19. Exhibits Exhibits
20. Undertakings Undertakings
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CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
PROPOSED
TITLE OF PROPOSED MAXIMUM
SECURITIES AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE
- ---------- ---------- ------------- --------- ---
Common Stock
$5.00 par value 344,500 (2) $15.25 $5,253,625 $1,460.51
- -------------------------------------------------------------------------------
(1) Based on the Company's estimate of the market price of its common stock on
December 10, 1999 and estimated solely for the purpose of determining the
registration fee.
(2) Pursuant to Rule 416, there are also being registered such additional
securities as may become issuable as a result of the "anti-dilution" provisions
of the options.
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P R O S P E C T U S
344,500 Shares
State Bancorp, Inc.
Common Stock
($5 Par Value)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
STATE BANCORP, INC.
1999 INCENTIVE STOCK OPTION PLAN
State Bancorp, Inc. (the "Company") is offering its common stock to
employees and other key personnel associated with the Company who may be granted
options pursuant to the 1999 Incentive Stock Option Plan ("1999 Plan"). The
offer is made at the prices and on the terms and conditions contained in the
stock options to be granted pursuant to the plan.
The Common Stock covered by this Prospectus is traded on The American Stock
Exchange. Participants under the plan (who are not "affiliates" of the Company)
who exercise options to purchase Common Stock under the plan may sell such
shares from time to time in such market.
The Company will provide without charge to each person to whom a Prospectus
is delivered, upon written or oral request, a copy of any and all of the
information that has been incorporated herein by reference excluding the
exhibits thereto. Such requests should be directed to State Bancorp, Inc., 699
Hillside Avenue, New Hyde Park, New York 11040, Attention: Secretary; (516)
437-1000.
The Date of this Prospectus is December 13, 1999
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No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offer contained herein and, if given or made, such information or
representations must be relied upon as having been authorized by the Company.
Neither the delivery of this Prospectus nor any sale hereunder shall under any
circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof.
TABLE OF CONTENTS
Page
THE PLAN......................................................................3
1999 Incentive Stock Option Plan.........................................3
General Information......................................................3
Tax Consequences.........................................................3
Certain Provisions of the 1999 Incentive Stock
Option Plan............................................................4
OPTIONS TO PURCHASE COMMON STOCK..............................................7
DESCRIPTION OF COMMON STOCK...................................................7
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................8
ADDITIONAL INFORMATION........................................................8
LEGAL OPINION.................................................................9
EXPERTS.......................................................................9
INDEMNIFICATION OF DIRECTORS AND OFFICERS.....................................9
This Prospectus relates to Common Stock issuable pursuant to the 1999
Incentive Stock Option Plan of State Bancorp, Inc., a New York corporation
having its principal office at 699 Hillside Avenue, New Hyde Park, New York
11040, telephone No. (516) 437-1000.
This Prospectus is not available for resale of the securities described
herein by persons who are "affiliates" of the Company, as that term is defined
in Rule 405 under the Securities Act of 1933 (the "Act"). Such resales may be
made pursuant to Rule 144 under such Act. In addition, the provisions of Section
16(b) of the Securities Exchange Act of 1934 (the "Exchange Act") may also be a
consideration in resale decisions by persons who are subject to such Section in
respect of the securities described herein.
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THE PLAN
1999 Incentive Stock Option Plan
- --------------------------------
General Information
-------------------
The Company's 1999 Incentive Stock Option Plan("1999 Plan") was
adopted by the Board of Directors on February 25, 1999 and ratified by the
stockholders of the Company at the Annual Meeting of Stockholders held on April
25, 1999. The 1999 Plan authorizes the grant of options for up to 344,500 shares
(adjusted to give effect to a 6% stock dividend declared by the Board of
Directors of the Company on May 25, 1999 and paid on July 2, 1999).
As of December 10, 1999, no shares were under option to employees of
the Company or its subsidiary, State Bank of Long Island ("the Bank"), including
directors and officers. Through such date, no shares had been purchased on
exercise of any options under the 1999 Plan.
The purpose of the 1999 Plan is to furnish an incentive to
employees of the Company and its subsidiaries by making available to them the
benefits of a proprietary interest in the Company, to encourage the continued
service of employees and to attract to the Company individuals of experience and
ability.
In the opinion of the Company, the 1999 Plan is not subject to the
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") and
is not qualified under Section 401(a) of the Internal Revenue Code (the "Code").
Tax Consequences
----------------
Incentive Options granted under the 1999 Plan are intended to
qualify as "incentive stock options" within the meaning of Section 422A of the
Code.
There are no tax consequences to either the Company or the
optionee upon grant of an Incentive Option. There are no tax consequences for
regular tax purposes to the optionee upon exercise of an Incentive Option if the
shares are not disposed of within two years from the date the Incentive Option
was granted or within one year of exercise. However, the optionee will have
ordinary income for alternative minimum tax purposes equal to the excess of the
fair market value of the shares at the time of exercise over the exercise price.
Any gain realized upon disposition after the required holding period will be
long-term capital gain and any loss will be long-term capital loss. No deduction
will be allowed to the Company upon exercise of an Incentive Option. If the
above described holding period requirements are not met, the gain realized on
disposition constitutes ordinary compensation income to the extent of the excess
of the fair market value of the shares at the time of exercise over the exercise
price. Any gain in excess of the amount taxed as ordinary compensation income
will be taxed as capital gain. The Company will be entitled to a compensation
deduction in the amount equal to the optionee's ordinary compensation income.
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Certain Provisions of the 1999 Plan
-----------------------------------
Administration.
---------------
The 1999 Plan is administered by the Board of Directors of the
Company and by the Stock Option Committee ("Committee") of the Board, which
presently consists of four members appointed by the Board, currently consisting
of Joseph F. Munson, John F. Picciano, Gerald P. Rosenberg and Suzanne H. Rueck.
Mr. Picciano, Mr. Munson and Ms. Rueck are directors of the Company and Mr.
Rosenberg serves as Secretary to the Board of Directors of the Company. The
address of each member of the Committee is 2 Jericho Plaza, Jericho, New York
11753. The Committee has the authority in its discretion to determine the
purchase price of the Common Stock issuable upon the exercise of each option,
to determine the employees to whom, and the time or times at which
options shall be granted and the number of shares to be issuable upon the
exercise of each option, determine the terms and provisions of the respective
option agreements and to make all other determinations deemed necessary or
advisable for the administration of the plan, except that modifications,
extensions or renewals of outstanding options granted under the plan may be
made only by the Board of Directors of the Company which also has the sole
authority to accept the surrender of outstanding options, to the extent not
theretofore exercised, and authorize the granting of new options in substitution
therefor.
Participation.
--------------
Options under the 1999 Plan are available to key employees (who may
be officers or directors) of the Company, the Bank or the subsidiaries of
either the Company or the Bank, who, in the opinion of the
Committee, exercise such functions or discharge such responsibilities that they
merit consideration as key employees.
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Terms and Conditions of Options.
--------------------------------
All options under this plan are granted subject to the following terms
and conditions:
(a) Option Price. The 1999 Plan provides for an option price per
share of not less than 100% of the fair market value or the book value,
whichever is greater on the date of the grant (110% of fair market value, or
book value, whichever is greater, in the case of an employee who owns more
than 10% of the capital stock of the Company).
(b) Term of Option. No option granted under the 1999 Plan shall be
exercisable after the expiration of 10 years from the date it is granted (five
years in the case of a more than 10% shareholder), or such shorter period as may
be specified by the Committee at the time of the grant.
(c) Payment. The option price is payable in cash.
(d) Exercise of Option. The participant, subject to the provisions
of the 1999 Plan, may exercise the option in whole or in part as provided by the
terms of the option, by giving written notice thereof to the Company, specifying
the number of shares to be purchased, and accompanied by the option price
therefor. No Incentive Option may be exercised unless and until the optionee has
been continuously employed by the Company since the date of the grant and has
remained in such employ for one year (or such shorter period, but not less than
six months, specified by the Board of Directors of the Company in any individual
case deemed exceptional by the Committee), from the date of the grant, except in
the case of death or disability, as described below.
(e) Transferability and Termination of Option. No Incentive Option
will be transferable by an optionee other than by will or the laws of descent
and distribution, and during the lifetime of an optionee the Incentive Option
will be exercisable only by him.
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An option, to the extent not exercised, shall terminate upon its
expiration date, or upon its surrender pursuant to certain provisions of the
plan or upon termination of the employment of the optionee (except by reason of
death or disability or Change in Control as defined in the 1999 Plan), whichever
is earliest. In the event of termination of employment by reason of disability,
the optionee will have one year after such termination within which to exercise
the Incentive Option to the extent it was exercisable at the date of such
termination. The Incentive Option of an optionee who dies while in the employ of
the Company or the Bank or any of their subsidiaries remains exercisable for one
(1) year thereafter, to the extent it had not previously been exercised, and to
the extent the deceased employee was entitled to exercise it at the date of the
employee's death. In no event shall any option be exercisable after the
expiration of the term of the option.
(f) Restrictions on Transferability. Each employee who receives an
option shall agree to serve in the employ of the Company or the Bank or any of
their subsidiaries for three (3) years, or such shorter period (not less than
six months) as the Board of Directors of the Company may specify, from the date
on which the option is granted. Any termination of such employment during such
period which is either (1) for cause, or (2) voluntary on the part of the
employee and without the consent of the Company (except that a voluntary
termination within three (3) months after a Change in Control shall not be
deemed voluntary by the optionee), shall result in the termination of all
options not previously exercised.
In addition, any capital stock issued upon the exercise of an
option is not transferable until the employee has fulfilled his or her agreement
to serve in the employ of the Company or the Bank or any of their subsidiaries,
as described in the preceding paragraph. If the employment of the optionee is
terminated prior to such time, the restrictions on sale of capital stock issued
upon the exercise of an option shall be extended for a period of five (5) years
from the date of such termination of employment.
Certificates for shares of Common Stock issued upon the exercise
of options prior to three (3) years from the date of granting of such option
shall bear an appropriate legend referring to the restrictions imposed by the
1999 Plan.
(g) Recapitalization. In the event of any increase or decrease in
the number or kind of outstanding shares of Common Stock of the Company by
reason of a subdivision, consolidation, stock dividend, or any other increase or
decrease in the shares of stock of the Company effected without receipt of
consideration by the Company, appropriate adjustment will be in the number and
kind of shares for which options may thereafter be granted both in the aggregate
and as to each optionee, as well as in the number and kind of shares subject to
options theretofore granted under the 1999 Plan and the option price payable
upon exercise of such options.
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In the event of any proposed dissolution or liquidation of the
Company or a proposed merger or consolidation in which the Company will not be
the surviving corporation, no adjustment will be made. The Company will mail or
furnish to each optionee written notice of such proposed dissolution,
liquidation, merger or consolidation at least twenty (20) days prior to such
event and each optionee shall have the right immediately and prior to such
dissolution, liquidation, merger or consolidation to exercise, in full or in
part, his or her option. Any option not so exercised shall terminate upon such
dissolution, liquidation, merger or consolidation.
No other adjustments will be made.
(h) Amendment of Plan. The Board of Directors may, insofar as
permitted by law, with respect to any shares not subject to options, suspend or
discontinue the 1999 Plan or revise or amend it in any respect except that,
without approval of a majority of the shareholders, no such revision or
amendment shall increase the number of shares subject to the 1999 Plan, reduce
the minimum option price, extend the period during which options may be granted
or exercised, change the designation of the class of employees eligible to
receive options or change the number of shares which may be optioned to any one
individual.
OPTIONS TO PURCHASE COMMON STOCK
As of December 10, 1999, no options to purchase shares had been
granted under the 1999 Plan.
DESCRIPTION OF COMMON STOCK
The description of the Company's Common Stock, as contained in its
Registration Statement on Form S-4 under the Exchange Act, is hereby
incorporated by reference in this Prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission ("Commission") are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
3. The Company's Proxy Statement relating to its April 27, 1999
Annual Meeting of Stockholders.
All documents subsequently filed by the Company pursuant to
Sections 13(a) through(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof, from
the date of filing of such documents.
ADDITIONAL INFORMATION
The Company is subject to the information requirements of the
Exchange Act and in accordance therewith files reports, proxy statements and
other information with the Commission. Information, as of particular dates,
concerning directors and officers, their remuneration, options granted to them,
the principal holders of securities of the Company and any material interest of
such persons in transactions with the Company is disclosed in proxy statements
distributed to stockholders of the Company and filed with the Commission. Such
reports, proxy statements and other information may be inspected and copies may
be obtained (at prescribed rates) at the Commission's Public Reference Section,
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, as
well as the following regional offices: Seven World Trade Center, New York, New
York 10048 and Citicorp Center, 300 West Madison Street, Chicago, Illinois
60661. The Company's Common Stock is listed on the American Stock Exchange, and
copies of reports, proxy statements and other information concerning the Company
can be inspected at the offices of the American Stock Exchange at 86 Trinity
Place, New York, New York 10006. In addition, certain of such materials are also
available through he Commission's Electronic Data Gathering and Retrieval System
("EDGAR").
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LEGAL OPINION
The legality of Common Stock covered hereby has been passed upon
for the Company by Lamb & Barnosky, LLP, 534 Broadhollow Road, Melville, New
York 11747, Counsel to the Company. Gary Holman, a member of said firm, is the
Vice Chairman of the Board of Directors of the Company and beneficially owns
51,178 shares of the Company's Common Stock. Gerald P. Rosenberg, also a member
of said firm, serves as Secretary to the Board of Directors of the Company and
owns 10,253 shares of the Company's Common Stock. In addition, the firm's profit
sharing plan owns 5,984 shares of the Company's Common Stock.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from State Bancorp, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1998, have been audited by Deloitte & Touche,
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authorization as experts in accounting and
auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the issuer pursuant to
the foregoing provisions, the issuer has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 18. Indemnification of Directors and Officers
Sections 721, 722, 723, 724 and 725 of the Business Corporation
Law of New York provide the following:
Section 721: The indemnification and advancement of expenses
granted pursuant to, or provided by, this article shall not be deemed exclusive
of any other rights to which a director or officer seeking indemnification or
advancement of expenses may be entitled, whether contained in the certificate of
incorporation or the by-laws or, when authorized by such certificate of
incorporation or by-laws, (i) a resolution of shareholders, (ii) a resolution or
directors, or (iii) an agreement providing for such indemnification, provided
that no indemnification may be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to the director or officer
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled. Nothing contained in this
article shall affect any rights to indemnification to which corporate personnel
other than directors and officers may be entitled by contract or otherwise under
law.
Section 722: (a) A corporation may indemnify any person made, or
threatened to be made, a party to an action or proceeding (other than one by or
in the right of the corporation to procure a judgment in its favor), whether
civil or criminal, including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other enterprise, which any director or
officer of the corporation served in any capacity at the request of the
corporation, by reason of the fact that he, his testator or intestate, was a
director or officer of the corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein, if such
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director or officer acted, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition, had no reasonable cause to believe that his conduct
was unlawful.
(b) The termination of any such civil or criminal action or proceeding
by judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption that any such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation or that he had reasonable
cause to believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened to be
made, a party to an action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against amounts paid in settlement
and reasonable expenses, including attorneys's fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the corporation, except that no indemnification under this paragraph shall be
made in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation, unless and only
to the extent that the court in which the action was brought, or, if no action
was brought, any court of competent jurisdiction, determines upon application
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
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(d) For the purpose of this section, a corporation shall be deemed to
have requested a person to serve an employee benefit plan where the performance
by such person of his duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law shall be considered fines; and
action taken or omitted by a person with respect to an employee benefit plan in
the performance of such person's duties for a purpose reasonably believed by
such person to be in the interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
Section 723: (a) A person who has been successful, on the merits or
otherwise, in the defense of a civil or criminal action or proceeding of the
character described in Section 722 shall be entitled to indemnification as
authorized in such section.
(b) Except as provided in paragraph (a), any indemnification under
section 722 or otherwise permitted by Section 721, unless ordered by a court
under Section 724 (Indemnification of directors and officers by a court), shall
be made by the corporation, only if authorized in the specific case:
(1) By the board acting by a quorum consisting of directors who
are not parties to such action or proceeding upon a finding that the director or
officer has met the standard of conduct set forth in Section 722 or established
pursuant to Section 721, as the case may be, or,
(2) If a quorum under subparagraph (1) is not obtainable or, even
if obtainable, a quorum of disinterested directors so directs;
(A) By the board upon the opinion in writing of independent legal
counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in such sections has been met by such
director or officer, or
(B) By the shareholders upon a finding that the director or
officer has met the applicable standard of conduct set forth in such sections.
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(c) Expenses incurred in defending a civil or criminal action or
proceeding may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount as, and to the extent, required by
paragraph (a) of Section 725.
Section 724: (a) Notwithstanding the failure of a corporation to
provide indemnification, and despite any contrary resolution of the board or of
the shareholders in the specific case under Section 723 (Payment of
indemnification other than by court awards), indemnification shall be awarded by
a court to the extent authorized under Section 722 (Authorization for
indemnification of directors and officers), and paragraph (a) of Section 723.
Application therefor may be made, in every case, either:
(1) In the civil action or proceeding in which the expenses
were incurred or other amounts were paid, or
(2) To the supreme court in a separate proceeding, in which case
the application shall set forth the disposition of any previous application
made to any court for the same or similar relief and also reasonable cause
for the failure to make application for such relief in the action or proceeding
in which the expenses were incurred or other amounts were paid.
(b) The application shall be made in such manner and form as
may be required by the applicable rules of court or, in the absence
thereof, by direction of a court to which it is made. Such application shall
be upon notice to the corporation. The court may also direct that notice
be given at the expense of the corporation to the shareholders and such other
persons as it may designate in such manner as it may require.
(c) Where indemnification is sought by judicial action, the court
may allow a person such reasonable expenses, including attorneys' fees, during
the pendency of the litigation as are necessary in connection with his
defense therein, if the court shall find that the defendant has by his
pleadings or during the course of the litigation raised genuine issues of fact
or law.
Section 725: (a) All expenses incurred in defending a civil or
criminal action or proceeding which are advanced by the corporation under
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paragraph (c) of Section 723 (Payment of indemnification other than by court
award) or allowed by a court under paragraph (c) of Section 724 (Indemnification
of directors and officers by a court) shall be repaid in case the person
receiving such advancement or allowance is ultimately found, under the procedure
set forth in this Article, not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced by the
corporation or allowed by the court exceed the indemnification to which he is
entitled.
(b) No indemnification, advancement or allowance shall be made
under this article in any circumstance where it appears:
(1) That the indemnification would be inconsistent with the law of
the jurisdiction of incorporation of a foreign corporation which prohibits or
otherwise limits such indemnification;
(2) That the indemnification would be inconsistent with a
provision of the certificate of incorporation, a by-law, a resolution of the
board or of the shareholders, an agreement or other proper corporate action, in
effect at the time of the accrual of the alleged cause of action asserted in the
threatened or pending action or proceeding in which the expenses were incurred
or other amounts were paid, which prohibits or otherwise limits indemnification;
or
(3) If there has been a settlement approved by the court, that the
indemnification would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in approving the settlement.
(c) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the shareholders,
the corporation shall, not later than the next annual meeting of shareholders
unless such meeting is held within three months from the date of such payment,
and, in any event, within fifteen months from the date of such payment, mail to
its shareholders of record at the time entitled to vote for the election of
directors a statement specifying the persons paid, the amounts paid, and the
nature and status at the time of such payment of the litigation or threatened
litigation.
(d) If any action with respect to indemnification of directors and
officers is taken by way of amendment of the by-laws, resolution of directors,
or by agreement, then the corporation shall, not later than the next annual
meeting of shareholders, unless such meeting is held within three months from
the date of such action, and, in any event, within fifteen months from the date
of such action, mail to its shareholders of record at the time entitled to vote
for the election of directors a statement specifying the action taken.
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(e) Any notification required to be made pursuant to the foregoing
paragraph (c) or (d) of this section by any domestic mutual insurer shall be
satisfied by compliance with the corresponding provisions of section one
thousand two hundred sixteen of the insurance law.
(f) The provisions of this Article relating to indemnification of
directors and officers and insurance therefor shall apply to domestic
corporations and foreign corporations doing business in this state, except as
provided in Section 1320 (Exemption from certain provisions).
Article V of the registrant's By-laws provides:
"ARTICLE V
INDEMNIFICATION
Section 501. Mandatory Indemnification. (a) The Corporation shall, to
the full extent permitted by the New York Business Corporation Law, as amended
from time to time (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights that said law permitted the Corporation to provide prior to such
amendment) indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceedings, whether civil, criminal, administrative or investigative, by reason
of the fact that he/she is or was a director, officer or employee of the
Corporation or any of its subsidiaries or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
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his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (c) of this Section 501, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. Any right of
indemnification so provided shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition, such advances to be paid by the
Corporation within 20 days after receipt by the Corporation of a statement or
statements from the claimant requesting such advance or advances from time to
time; provided, however, that if the New York Business Corporation Law requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to any employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this By-Law or
otherwise.
(b) To obtain indemnification under this By-Law, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (b), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be as follows: (1) if requested by the claimant, by
Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
16
<PAGE>
written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of entitlement
to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceedings for which indemnification is
claimed a Change of Control, in which case the Independent Counsel shall be
selected by the claimant unless the claimant shall request that such selection
be made by the Board of Directors. If it is so determined that the claimant is
entitled to indemnification, payment to the claimant shall be made within 10
days after such determination.
(c) If a claim under paragraph (a) of this Section 501 is not paid
in full by the Corporation within thirty days after a written claim pursuant to
paragraph (b) of this By-Law has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the New York Business Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, Independent Counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
New York Business Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, Independent Counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
17
<PAGE>
(d) If a determination shall have been made pursuant to paragraph
(b) of this Section 501 that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (c) of this Section 501.
(e) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (c) of this Section 501 that
the procedures and presumptions of this Section 501 are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this By-Law.
(f) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this By-Law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Section 501 shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
(g) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the New York Business Corporation Law. To the extent that the Corporation
maintains any policy or policies providing such insurance, each such director or
officer, and each such agent or employee to which rights to indemnification have
been granted as provided in paragraph (h) of this Section 501, shall be covered
by such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such director, officer, employee or
agent.
(h) The Corporation may, to the extent authorized from time to
time by the Board of Directors or the stockholders of the Corporation by
resolution thereof, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section 501 with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation, or to any directors or officers of the Corporation to the extent
such rights are permitted by law and not available under this Section 501.
18
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(i) If any provision or provisions of this Section 501 shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this
Section 501 (including, without limitation, each portion of any paragraph of
this Section 501 containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this Section 501 (including, without
limitation, each such portion of any paragraph of this Section 501 containing
any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
(j) For purposes of this By-Law:
(1) "Change of Control" means
(A) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (i) the then outstanding shares of the Corporation's
Common Stock or (ii) the combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally in the
election of directors (the "Corporation Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change of Control; (i) any acquisition directly
from the Corporation, (ii) any acquisition by the Corporation,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or (iv) any acquisition pursuant
to a transaction which complies with clauses (i), (ii) and (iii) of paragraph
(C) of this Section 501(j)(1); or
19
<PAGE>
(B) Individuals who, as of September 23, 1997, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual becoming a
director subsequent to September 23, 1997 whose election, or nomination
for election by the Corporation's stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(C) Consummation by the Corporation of a reorganization,
merger or consolidation or sale or other disposition of all or substantially
all of the assets of the Corporation or the acquisition of assets of another
entity (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the outstanding
common stock and outstanding voting securities of the Corporation immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 60% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of
such transaction owns the Corporation or all or substantially all of the
Corporation's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such
Business Combination, of the Corporation's outstanding common stock and
outstanding voting securities, as the case may be, (ii) no Person (excluding any
employee benefit plan (or related trust) of the Corporation or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
20
<PAGE>
(D) Approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(2) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the action or proceeding in
respect of which indemnification is sought by the claimant.
(3) "Independent Counsel" means a law firm, a member of a
law firm, or an independent practitioner, that is experienced in matters
of corporation law and shall include any person who, under the applicable
standards of professional conduct then prevailing, would not have a conflict
of interest in representing either the Corporation or the claimant in an action
to determine the claimant's rights under this By-Law.
(k) Any notice, request or other communication required or
permitted to be given to the Corporation under this By-Law shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary."
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling the registrant pursuant to the foregoing provisions, the issuer has
been informed that in the opinion of the Securities and Exchange 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
21
<PAGE>
connection with the securities being registered, the registrant will, unless in
the option of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by its is against public policy as expressed in teh Securities
Act and will be governed by the final adjudication of such issue.
Item 19. Exhibits
--------
4 1999 Incentive Stock Option Plan is incorporated by
reference as Exhibit A to the registrant's definitive
Proxy Statement in connection with the 1999 Annual
Meeting of Stockholders.
5 Opinion of Lamb & Barnosky, LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Lamb & Barnosky, LLP, included in their
opinion filed as Exhibit 5.
Item 20. Undertakings
------------
A. Rule 415 Registration
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, 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 information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
22
<PAGE>
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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 such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Filings Incorporating Subsequent Exchange Act Documents by
Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 each filing of the
issuer'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 the time shall be deemed to be the initial bona fide offering thereof.
C. To Transmit Certain Material
(1) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each employee to whom the
prospectus is sent or given, a copy of the registrant's annual report to
stockholders for its last fiscal year, unless such employee otherwise has
received a copy of such report, in which case the registrant shall state in the
prospectus that it will promptly furnish, without charge, a copy of such report
on written request of the employee. If the last fiscal year of the registrant
has ended within 120 days prior to the use of the prospectus, the annual report
of the registrant for the preceding year may be so delivered, but after such 120
day period the annual report for the last fiscal year will be furnished to each
such employee.
(2) The undersigned registrant hereby undertakes to transmit or
cause to be transmitted to all employees participating in the plan, who do not
otherwise receive such material as stockholders of the registrant, at the time
and in the manner such material is sent to its stockholders, copies of all
reports, proxy statements and other communications distributed to its
stockholders generally.
(3) Where interests in a plan are registered herewith, the
undersigned registrant and plan hereby undertake to transmit or cause to be
transmitted promptly, without charge, to any participant in the plan who makes a
written request, a copy of the then latest annual report of the plan filed
pursuant to section 15(d) of the Securities Exchange Act of 1934. If such report
is filed separately on Form 11-K, such form shall be delivered upon written
request. If such report is filed as part of the registrant's annual report on
Form 10-K, that entire report (excluding exhibits) shall be delivered upon
written request. If such report is filed as a part of the registrant's annual
report to stockholders delivered pursuant to paragraph (1) or (2) of this
undertaking, additional delivery shall not be required.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the issuer 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 it behalf by the undersigned, thereunto
duly authorized, in Jericho, New York, on the 13th day of December, 1999.
STATE BANCORP, INC.
BY: /s/Thomas F. Goldrick, Jr.
--------------------------
THOMAS F. GOLDRICK, JR.
CHAIRMAN and
CHIEF EXECUTIVE OFFICER
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement and power of attorney has been signed by
the following persons in the capacities and on the dates indicated.
By his or her signature, each of the following persons authorizes
Thomas F. Goldrick, Jr. and Daniel T. Rowe and Brian K. Finneran, or any of
them, with full power of substitution, to execute in his name and on his behalf,
and to file any amendments (including, without limitation, post-effective
amendments) to this Registration Statement necessary or advisable in the opinion
of any of them to enable the Company to comply with the Securities Act, and any
rules, regulations and requirements of the Commission thereunder, in connection
with the registration of the securities which are the subject of this
Registration Statement.
Signature Title Date
/s/Thomas F. Goldrick, Jr. Chairman of the Board of December 13, 1999
- -------------------------- Directors and Chief
THOMAS F. GOLDRICK, JR. Executive Officer
(Principal Executive
Officer)
/s/Daniel T. Rowe President and Director December 13, 1999
- -----------------
DANIEL T. ROWE
/s/Richard W. Merzbacher Vice Chairman and Director December 13, 1999
- ------------------------
RICHARD W. MERZBACHER
/s/Gary Holman Vice Chairman of the Board of December 13, 1999
- -------------- Directors
GARY HOLMAN
/s/J. Robert Blumenthal Director December 13, 1999
- -----------------------
J. ROBERT BLUMENTHAL
/s/Carl R. Bruno Director December 13, 1999
- ----------------
CARL R. BRUNO
/s/Arthur Dulik, Jr. Director December 13, 1999
- --------------------
ARTHUR DULIK, JR.
/s/Joseph F. Munson Director December 13, 1999
- -------------------
JOSEPH F. MUNSON
/s/John F. Picciano Director December 13, 1999
- -------------------
JOHN F. PICCIANO
/s/Suzanne H. Rueck Director December 13, 1999
- -------------------
SUZANNE H. RUECK
/s/Brian K. Finneran Secretary/Treasurer December 13, 1999
- -------------------- (Principal Financial
BRIAN K. FINNERAN and Accounting Officer
24
EXHIBIT (5)
OPINION OF LAMB & BARNOSKY, LLP
December 10, 1999
State Bancorp, Inc.
699 Hillside Avenue
New Hyde Park, NY 11040
Dear Sirs:
We have acted as counsel to State Bancorp, Inc., a New York corporation (the
"Company"), in connection with the filing of the Company's registration
statement on Form S-8 with the Securities and Exchange Commission on or about
December 10, 1999, (the "Registration Statement") under the Securities Act of
1933, as amended. The Registration Statement is being filed in connection with
the Company's offering of 344,500 share of Common Stock ($5.00 par value per
share) (the "Plan Shares") pursuant to the Company's 1999 Incentive Stock Option
Plan, (the "Plan").
We are familiar with the proceedings to date with respect to such offering and
have examined such records, documents and matters of law and satisfied ourselves
as to such matters of fact as we have considered relevant for purposes of this
opinion.
For purposes of this opinion, we have assumed the authenticity of all documents
submitted to us as originals and the conformity to the originals of all
documents submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto, and the due authorization, execution and delivery of all
documents by the parties thereto.
We are of the opinion that when the Plan Shares shall have been issued and sold
on the terms contemplated by the Plan and the Registration Statement shall have
become effective, the Plan Shares will be legally issued, fully paid and non-
assessable.
This opinion shall be limited to the laws of the State of New York and the
federal laws of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
GERALD P. ROSENBERG
EXHIBIT (23.1)
INDEPENDENT AUDITORS' CONSENT
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of State Bancorp, Inc. on Form S-8 of our reports dated
January 21, 1999, appearing in and incorporated by reference in the
Annual Report on Form 10-K of State Bancorp, Inc. for the year ended
December 31, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Philadelphia, PA
December 10, 1999
EXHIBIT (23.2)
CONSENT OF LAMB & BARNOSKY, LLP
Consent of Lamb & Barnosky, LLP, included in their opinion filed as Exhibit (5).
