AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON OCTOBER 14, 1998
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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UNITY BANCORP, INC.
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(Exact name of Registrant as Specified in its Charter)
DELAWARE
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(State or other Jurisdiction of incorporation or Organization)
22-3282551
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(I.R.S. Employer Identification Number)
64 OLD HIGHWAY 22, CLINTON, NEW JERSEY 08809
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(Address, including zip Code, and telephone number, including
area code, of angent for service)
JOHN TREMBLAY, PRESIDENT
UNITY BANCORP, INC.
64 OLD HIGHWAY 22
CLINTON, NEW JERSEY 07416
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
ROBERT A. SCHWARTZ, ESQ.
JAMIESON, MOORE, PESKIN & SPICER
177 MADISON AVENUE
MORRISTOWN, NEW JERSEY 07960
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<PAGE>
Approximate date of commencement of proposed sale to the public: as soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 (the "Securities Act"), other than securities
offered only in connection with dividend or interest reinvestment plans,
check the following box. [ ]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title of Amount Maximum Aggregate Amount of
Shares to to be Price Per Offering Registration
be registered Registered Share (l) Price (1) Fee
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Common Stock, 548,150 $10.375 $5,687,057 $1,678
no par value
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(1) Estimated solely for the purpose of determining the registration fee, in
accordance with Rule 457 under the Securities Act of 1933, based upon the
average of the reported high and low sales prices of the Common Stock report on
the NASDAQ National Market as of October 8, 1998.
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PROSPECTUS
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UNITY BANCORP INC.
COMMON STOCK
In December 1996, we issued warrants to purchase shares of the Company's
common stock at an exercise price of $10.50 per share, as adjusted for stock
splits. These warrants expire at 5:00 p.m., eastern daylight time, on December
15, 1998. The warrants trade on the American Stock Exchange. We have hired First
Colonial Securities Group, Inc. to act as Warrant Conversion Agent and the
shares of common stock hereby will be sold by First Colonial. Among other
things, First Colonial will purchase warrants which become available on the
American Stock Exchange. First Colonial will then exercise the warrants and
resell the Common Stock to the public. First Colonial will sell the common stock
at prices based on the then current market prices.
We will not receive any proceeds from the sale of the common stock. We
will, however, receive proceeds from the exercise of warrants of $10.50 per
share.
The common stock is listed on the NASDAQ National Market under the symbol
"UNTY" and the Warrants are listed on the American Stock Exchange under the
symbol "UBI.WS".
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BEFORE PURCHASING THE COMMON STOCK, YOU SHOULD READ THE RISK FACTORS BEGINNING
ON PAGE 4.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED THE COMMON
STOCK OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SHARES OF COMMON STOCK ARE NOT BANK DEPOSITS AND ARE NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY.
FIRST COLONIAL SECURITIES GROUP, INC.
The date of this Prospectus is __________, 1998.
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TABLE OF CONTENTS
PAGE
Information Incorporated by
Reference ........................ 3
The Company ......................... 3
Selected Financial Data ............. 4
Recent Developments ................. 4
Risk Factors ........................ 5
Use of Proceeds ..................... 7
Plan of Distribution ................ 7
Warrant and Transfer Agent .......... 8
Legal Matters ....................... 8
Experts ............................. 8
Where You Can Find Additional
Information ....................... 9
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
We have incorporated by reference into this Prospectus the following
documents we filed with the Commission under the Securities Exchange Act of
1934: (i) the Annual Report on Form l0-KSB for the fiscal year ended December
31, 1997, (ii) the Proxy Statement for the 1998 Annual Meeting of Shareholders,
(iii) the Quarterly Reports on Form 10-QSB for the quarters ended March 31 and
June 30, 1998, (iv) Current Reports on Form 8-K filed on July 28, September 15
and September 24, 1998 and (v) the description of the common stock contained in
our Registration Statement on Form 8-A filed under Section 12 of the Exchange
Act, including any amendment thereto or report filed under the Exchange Act for
the purpose of updating such description.
To the extent that any information in this Prospectus modifies or
supersedes information in a document incorporated by reference, the incorporated
document will be deemed to be modified or superseded for purposes of this
Prospectus, and the incorporated document will not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
You may obtain without charge, upon written or oral request, a copy of any
of the documents incorporated by reference herein, except for the exhibits,
unless such exhibits are specifically incorporated by reference herein. Your
request should be sent to Kevin Killian, Chief Financial Officer, Unity Bancorp,
Inc., 64 Old Highway 22, Clinton, New Jersey 08809.
THE COMPANY
Unity Bancorp, Inc. is a New Jersey business corporation and a holding
company for First Community Bank, which engages in a commercial banking business
in Hunterdon, Middlesex, Morris, Somerset and Union counties, New Jersey. We
direct the policies and coordinate the financial resources of the Bank. At June
30, 1998, we had consolidated total assets of $230.2 million and shareholders'
equity of $20.7 million.
The Bank is a New Jersey state-chartered bank which commenced business in
1991. The Bank currently operates from its main office in Clinton, New Jersey
and from six branch offices located in Flemington, North Plainfield,
Springfield, Scotch Plains, Union and Linden, New Jersey . The deposits of the
Bank are insured by the Bank Insurance Fund of the FDIC up to applicable limits.
The operations of the Bank are subject to the supervision and regulation of the
New Jersey Department of Banking and Insurance and the FDIC.
We lend funds to individuals and businesses for personal and commercial
purposes. We emphasize the origination of loans with adjustable rates of
interest tied to our Prime Rate, with _____% of our loan portfolio consisting of
adjustable rate loans and _____% consisting of fixed rate loans. The interest
rates on our adjustable rate loans are repriced from time-to-time to reflect
changes, up or down, in our cost of funds. In order to be competitive with other
established banking institutions in our trade area, we charge rates which are
generally comparable to those charged by other lenders.
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In addition, we have been very active in providing loans to small
businesses through the United States Small Business Administration guaranteed
loan program. Under the SBA program, loans are available to small businesses
which meet certain criteria. Up to 90% of the principal of a loan to a qualified
business may be guaranteed by the United States Government. We sell the
guaranteed portion of our SBA loans into the secondary market and derive premium
income. Our ability to offer SBA loans on an ongoing basis is dependent upon,
among other factors, appropriation of funds by the federal government to the SBA
program. We have been designated a "preferred lender" for the states of New
Jersey, Delaware, New York and Pennsylvania by the SBA. This means that we may
originate SBA guaranteed loans without prior SBA approval, although the
guaranteed portion of this loan will be 80% for loans up to $100,000 and 75% for
loans over $100,000 and up to $1,000,000.
Our commercial loans are generally secured by business assets, personal
guarantees of the principals of closely-held businesses and often by the
personal assets of such principals. The loans are made to small and mid-sized
businesses in our trade area. Federal and state law and regulations restrict how
much any bank may lend to a single customer with the restrictions stated as a
percentage of the bank's primary capital. We believe that we can attract
commercial borrowers by providing competitive rates, superior services, local
decision-making and flexibility in loan structure. The Board of Directors
believes that small and mid-sized businesses are not always of primary
importance to larger banking institutions for commercial lending purposes,
whereas such businesses represent the main portion of our commercial loan
business.
We grant both secured and unsecured personal loans to finance the purchase
of automobiles, durable goods and other consumer goods. The Board of Directors
believes that our competitive interest rates and superior service (which
includes, among other things, convenience, personal attention and prompt local
decision-making) are important competitive factors in attracting personal loans
from credit-worthy consumers.
We also make residential and commercial real estate loans and, on a limited
basis, construction loans.
Our principal executive offices are located at 64 Old Route 22, Clinton,
New Jersey 08809, and our telephone number is (908) 730-7630.
SELECTED FINANCIAL DATA
On April 24, 1998 the Board of Directors of the Company declared a three
for two stock split payable June 1, 1998 to shareholders of record as of May 15,
1998. To give effect for this stock split, previously reported share and per
share information included in the Company's Annual Report on Form 10-KSB
incorporated by reference in this Registration Statement are adjusted as
follows: For the years ended December 31, 1997, 1996 and 1995, basic earnings
per share are $0.68, $0.49 and $0.56, respectively, as compared to the
previously reported amounts of $1.02, $0.74 and $0.83, respectively. For the
years ended December 31, 1997, 1996 and 1995, diluted earnings per share are
$0.67, $0.49, and $0.56, respectively, as compared to the previously reported
amounts of $1.01, $0.73, and $0.83, respectively. The weighted average number of
basic shares for the years ended December 31, 1997, 1996 and 1995 are 2,966,406,
2,129,783 and 1,805,661, respectively, as compared to previously reported shares
of 1,977,604, 1,419,855 and 1,203,774, respectively. The weighted average number
of diluted shares for the years ended December 31, 1997, 1996 and 1995 are
2,998,770, 2,143,893 and 1,805,661, respectively, as compared to previously
reported shares of 1,999,180, 1,429,262 and 1,203,774, respectively. In
addition, the number of shares issued and outstanding as of December 31, 1997
and 1996 are 2,978,228 and 2,946,170, respectively, as compared to the
previously reported shares of 1,985,485 and 1,964,113, respectively.
RECENT DEVELOPMENTS
We recently executed long-term leases for eight (8) new branch locations in
Cranford, Kenilworth, Berkeley Heights and Springfield in Union County and New
Brunswick, North Brunswick, South Plainfield and Edison, Middlesex County, New
Jersey. All of these facilities are existing bank branches, which are being
acquired without deposits or loans. The Union County branches are in our
existing trade area, while the Middlesex County branches are an
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extension of our trade area. In addition, we have executed a lease for a new
branch in Woodbridge Township, Middlesex County, New Jersey and we are in the
process of building a new branch in Whitehouse, Hunterdon County, New Jersey. We
anticipate that, pending regulatory approval, these 10 new branches will open in
stages from January through July, 1999, increasing our branch network to 18
offices. We also anticipate that we will incur a significant increase in
non-interest expense as these branches commence operation.
Effective September 21, 1998, our common stock began trading on the NASDAQ
National Market under the symbol "UNTY". From January 1997 to September 18,
1998, our common stock traded on the American Stock Exchange under the symbol
"UBI". Our warrants are traded on the American Stock Exchange under the symbol
"UBI.WS", and will continue to trade on the American Stock Exchange through
their expiration on December 15, 1998.
RISK FACTORS
Prospective investors should consider the following risk factors, in
addition to other information contained or incorporated by reference herein, in
connection with a decision to purchase our common stock.
DILUTIVE EFFECT OF THE ISSUANCE OF COMMON STOCK UPON THE EXERCISE OF WARRANTS
As of June 30, 1998, if all then outstanding Warrants were exercised, we
would have been required to issue 548,150 shares of common stock. We had
3,073,280 shares of common stock outstanding at June 30, 1998. Depending upon
our ability to invest the additional capital received upon the exercise of these
warrants, the issuance of the additional 548,150 shares of common stock could
cause dilution to our future per share earnings.
ABILITY TO SUSTAIN GROWTH; PROFITABILITY
We have grown rapidly in the past five years and intend to continue to grow
rapidly in the near future. Our assets, deposits and net loans have increased
from $65.7 million, $59.6 million and $24.8 million, respectively at the end of
1993 to $230.2 million, $207.7 million and $138.1 million at June 30, 1998.
Historically, our growth has been internally generated through greater
penetration of our existing markets and de novo branching. Continued future
growth may be accomplished through internal expansion and the acquisition of
financial institutions or existing branches. As a consequence of our growth
strategy, our short-term profitability could be negatively impacted as we incur
expense to fund growth before our investments generate significant income.
Our continued rapid growth and success will depend on our ability to
attract additional deposits, locate sound loan and investment opportunities,
expand into new marketplaces and
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identify potential acquisition candidates. In addition, our continued rapid
growth and success also depends on the ability of our officers and key employees
to manage our growth effectively, to attract and retain skilled employees and to
expand the capabilities of our management information systems. Accordingly,
there can be no assurance that we will be successful in managing our expansion
and the failure to do so would adversely effect our financial position.
SOURCES OF DIVIDENDS ON COMMON STOCK
Unity Bancorp, Inc. is a legal entity separate and distinct from the Bank.
Unity Bancorp, Inc. has no material assets other than its ownership of the Bank.
Earnings of the company are wholly dependent on the earnings of the Bank, as the
company has engaged in no significant operations of its own. Accordingly, the
earnings of the company, and its ability to pay dividends on the common stock,
are largely dependent on the receipt by the company of earnings of the Bank in
the form of dividends. Any restriction on the ability of the Bank to pay
dividends could significantly and adversely affect the ability of the company to
pay dividends with respect to the common stock. The Bank's ability to pay
dividends or make other capital distributions to the company is governed by
regulations imposed by the New Jersey Department of Banking and Insurance and
the FDIC, the Bank's primary regulators.
COMPETITION
The Bank's principal market area is served by branch offices of large
commercial banks and thrift institutions. A number of these institutions have
substantially greater resources than we do to expend upon advertising and
marketing, and their substantially greater capitalization enables them to make
much larger loans. Our success depends a great deal upon our judgment that large
and mid-size financial institutions do not adequately serve small businesses in
principal market area and our ability to compete favorably for such customers.
LENDING RISKS
The risk of nonpayment (or deferred or delayed payment) of loans is
inherent in commercial banking. Such non payment, or delayed or deferred payment
of loans to the Bank, if they occur, may have a material adverse effect on our
earnings and overall financial condition. Additionally, in compliance with
applicable banking laws and regulations, the Bank maintains an allowance for
loan losses created through charges against earnings. As of June 30, 1998, the
Bank's allowance for loan losses was $1.4 million. The Bank's marketing focus on
small to medium-size businesses may result in the assumption by the Bank of
certain lending risks that are different from or greater than those which would
apply to loans made to larger companies. We seek to minimize our credit risk
exposure through credit controls which include evaluation of potential
borrowers, available collateral, liquidity and cash flow. However, there can be
no assurance that such procedures will actually reduce loan losses.
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SUPERVISION AND REGULATION
The federal and state laws and regulations applicable to our operations
give regulatory authorities extensive discretion in connection with their
supervisory and enforcement responsibilities, and generally have been
promulgated to protect depositors and the deposit insurance funds and not for
the purpose of protecting stockholders. These laws and regulations can
materially affect our future business. Laws and regulations now affecting us may
be changed at any time, and the interpretation of such laws and regulations by
bank regulatory authorities is also subject to change. We can give no assurance
that future changes in laws and regulations or changes in their interpretation
will not adversely effect our the business.
USE OF PROCEEDS
The total gross proceeds from the exercise of the warrants may range from
zero to $_______ , depending upon the number of warrants exercised. The proceeds
of the exercise of warrants will be paid directly to us. We will not receive any
proceeds from the sale of the common stock by First Colonial, however, we will
incur fixed expenses of approximately $50,000 in connection with the exercise of
the warrants, and we are obligated to pay First Colonial a total fee of the
lesser of $150,000 or 3.25% of the purchase price of shares issued upon the
exercise of warrants converted on or after the date of this Prospectus. We
intend to use the proceeds for general corporate purposes and to support our
continued growth and expansion both through internal expansion through our newly
acquired branches and the possible acquisition of other financial institutions,
although we do not currently have any agreements or commitments for specific
acquisitions.
PLAN OF DISTRIBUTION
The common stock offered hereby is being sold by First Colonial Securities
Group, Inc. The common stock will be acquired by First Colonial pursuant to the
terms of a Warrant Conversion Agency Agreement dated ____________, 1998 between
First Colonial Securities Group, Inc. and us (the "Warrant Conversion
Agreement"). Pursuant to the terms of the Warrant Conversion Agreement, First
Colonial will act as conversion agent to facilitate the exercise of warrants and
further to purchase warrants that become available on the open market, exercise
the warrants, and then sell the common stock purchased. First Colonial will
purchase the warrants from time-to-time at the then prevailing market prices on
the American Stock Exchange, where the warrants trade. No specific criteria have
or will be established for selecting warrants to purchase since whether and to
the extent any warrants are purchased will depend upon the current market
conditions and the number of sellers of warrants. Because the warrants are
traded on the American Stock Exchange, any holder of a warrant may, through a
registered broker/dealer, enter a sell order and sell their warrants through the
American Stock Exchange to any interested party, which may include First
Colonial. The open market purchases by First Colonial will continue until the
warrant expiration date.
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We will pay First Colonial a fee of the lesser of $150,000 or 3.25% of the
purchase price of shares issued upon the exercise of warrants converted on or
after the date of this Prospectus for its services as conversion agent and a
non-accountable expense allowance of $35,000. There are no provisions or
understandings requiring us to reimburse First Colonial in the event that the
value of the common stock falls between the time First Colonial exercises a
warrant and a subsequent resale of the common stock. All risk of market loss is
borne by First Colonial.
First Colonial will receive the net proceeds of the offering of common
stock. Although we will not receive proceeds from the sale of the common stock,
we will receive proceeds upon the exercise of the warrants by the warrant
holders, and we will use the proceeds for general corporate purposes and to
facilitate our plans for expansion.
We have agreed with First Colonial in the Warrant Conversion Agreement that
we will indemnify each other against certain liabilities, including certain
liabilities under the Securities Act, and to contribute to payments that each
may be required to make in respect thereof.
The foregoing includes a summary of the terms of the Warrant Conversion
Agreement and does not purport to be complete. Reference is made to a copy of
the Warrant Conversion Agreement that is on file as an exhibit to the
Registration Statement to which this Prospectus is a part.
WARRANT AND TRANSFER AGENT
Our warrant and transfer agent for the warrants and our common stock is
FCTC Transfer Services, LLP, with an office at 111 Wood Avenue South, Suite 206,
Iselin, New Jersey.
LEGAL MATTERS
The validity of the common stock being offered has been passed upon for us
by Jamieson, Moore, Peskin & Spicer, Morristown, New Jersey. Certain legal
matters will be passed upon for First Colonial by Klehr, Harrison, Harvey,
Branzberg & Ellers, LLP, Philadelphia, Pennsylvania.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of income, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 1997, incorporated by
reference into our Annual Report on Form 10-KSB for the year ended December 31,
1997, which is incorporated by reference into this Registration Statement on
Form S-3, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto. The financial
statements are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said report.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements of the Exchange Act and
must file reports and other information with the SEC.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the common stock offered in
this document. As permitted by the rules and regulations of the SEC, this
document does not contain all the information set forth in the registration
statement. Such information, as well as the information filed under the Exchange
Act, can be examined without charge at the public reference facilities of the
SEC located at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of
such material can be obtained from the SEC at prescribed rates. The SEC also
maintains an Internet address ("Web site") that contains reports, proxy and
information statements and other information regarding registrants, including
us, that file electronically with the SEC. The address for this Web site is
"http://www.sec.gov." The statements contained in this document as to the
contents of any contract or other document filed as an exhibit to the Form S-3
are, of necessity, brief descriptions and are not necessarily complete; each
such statement is qualified by reference to such contract or document.
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR DOCUMENTS
TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER TO
SELL, OR THE SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. THE AFFAIRS OF UNITY BANCORP, INC. OR FIRST COMMUNITY BANK
MAY CHANGE AFTER THE DATE OF THIS PROSPECTUS. DELIVERY OF THIS DOCUMENT AND THE
SALES OF SHARES MADE HEREUNDER DOES NOT MEAN OTHERWISE.
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UNTIL THE LATER OF __________, 199__ OR 25 DAYS AFTER COMMENCEMENT OF THE
OFFERING, ALL DEALERS EFFECTING TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS
IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITES AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
UNITY BANCORP, INC.
COMMON STOCK
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PROSPECTUS
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FIRST COLONIAL
SECURITIES GROUP, INC.
_________________, 1998
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration Fee ............................... $ 1,678
Accounting Fees and Expenses ....................... 3,500
Legal Fees and Expense ............................ 35,000
Transfer Agent Fees ................................ 5,000
Miscellaneous Expenses ............................. 4,822
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Total ................................................. $50,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Ninth of the Certificate of Incorporation of the Registrant and
Section 145 of the Delaware General Corporation Law ("DGCL") provides that the
corporation shall indemnify its present and former officers, directors,
employees, and agents and persons serving at its request ("corporate agents")
against expenses, including attorney's fees, judgments, fines or amounts paid in
settlement, incurred in connection with any pending or threatened civil or
criminal proceeding involving the corporate agent by reason of his being or
having been a corporate agent if (a) the agent acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation, and (b) with respect to any criminal proceeding, the corporate
agent had no reasonable cause to believe his conduct was unlawful.
With respect to any derivative action, the Registrant is empowered to
indemnify a corporate agent against his expenses (but not his liabilities)
incurred in connection with any proceeding involving the corporate agent by
reason of his being or having been a corporate agent if the agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation. However, only the court in which the proceeding
was brought can empower a corporation to indemnify a corporate agent against
expenses with respect to any claim, issue or matter as to which the agent was
adjudged liable for negligence or misconduct.
Under Section 145 of the DGCL, the Registrant may indemnify a corporate
agent in a specific case if a determination is made by any of the following that
the applicable standard of conduct was met: (i) the Board of Directors, or a
committee thereof, acting by a majority vote of a quorum consisting of
disinterested directors; (ii) by independent legal counsel, if there is not a
quorum of disinterested directors or if the disinterested quorum empowers
counsel to make the determination; or (iii) by the shareholders.
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Section 145 of the DGCL further provides that a corporate agent is entitled
to mandatory indemnification to the extent that the agent is successful on the
merits or otherwise in any proceeding, or in defense of any claim, issue or
matter in the proceeding. In advance of the final disposition of a proceeding,
the Registrant may pay an agent's expenses if the agent agrees to repay the
expense unless it is ultimately determined he is entitled to indemnification.
Article Ninth of the Certificate of Incorporation of the Registrant also
provides that such indemnification shall not exclude any other rights to
indemnification to which a person may otherwise be entitled, and authorizes the
corporation to purchase insurance on behalf of any of the persons enumerated
against any liability whether or not the corporation would have the power to
indemnify him under the provisions of Article Ninth.
With respect to possible indemnification of officers, directors, and other
corporate agents for liabilities arising under the Securities Act, the
Registrant 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 and is, therefore, unenforceable.
ITEM 16. EXHIBITS
Exhibit No. Description
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1 Warrant Conversion Agency Agreement*
5 Opinion of Jamieson, Moore, Peskin & Spicer as to the
legality of the securities to be registered.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Jamieson, Moore, Peskin & Spicer (Included in
Exhibit 5 hereto).
24 Powers of Attorney of directors of Unity Bancorp, Inc.
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*to be filed by amendment
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to file, during any period in
which it offers or sells securities, a post-effective amendment to this
registration statement to include any additional or changed material information
on the plan of distribution.
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The undersigned Registrant hereby undertakes, for purposes of determining
any liability under the Securities Act of 1933, to treat each post effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona fide offering and
to file a post effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Clinton, State of New Jersey, as of this 13th day of
October, 1998.
UNITY BANCORP, INC.
(Registrant)
By: /s/ ROBERT J. VAN VOLKENBURGH
__________________________________
Robert J. Van Volkenburgh
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below by the following
persons in the capacities indicated on this day of September, 1998.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ ROBERT J. VAN VOLKENBURGH
_______________________________ Chairman of the Board, October 13, 1998
Robert J. Van Volkenburgh Principal Executive
Officer and Director
/s/ DAVID D. DALLAS October 13, 1998
_______________________________ Director
David D. Dallas
/s/ PETER P. DETOMMASO October 13, 1998
_______________________________ Director
Peter P. DeTommaso
/s/ CHARLES S. LORING October 13, 1998
_______________________________ Director
Charles S. Loring
/s/ JOHN F. TREMBLAY October 13, 1998
_______________________________ Director
John F. Tremblay
/s/ KEVIN KILLIAN
_______________________________ Chief Financial Officer October 13, 1998
Kevin Killian (Principal Accounting
and Financial Officer)
</TABLE>
14
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
1 Warrant Conversion Agency Agreement*
5 Opinion of Jamieson, Moore, Peskin & Spicer as to the legality
of the securities to be registered.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Jamieson, Moore, Peskin & Spicer (Included in
Exhibit 5 hereto).
24 Powers of Attorney of directors of Unity Bancorp, Inc.
- ------------
* To be filed by amendment.
15
EXHIBIT NO. 5
October 13, 1998
Re: Registration Statement on Form S-3
----------------------------------
Unity Bancorp, Inc.
64 Old Route 22
Clinton, NJ 08809
Dear Sirs:
We have served as counsel to Unity Bancorp, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing by the Company of
a Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission, covering up to 548,150 shares (the "Shares")
of common stock, no par value, of the Company to be publicly offered by First
Colonial Securities Group, Inc. (the "Warrant Conversion Agent").
In rendering this opinion, we have examined the Company's Certificate of
Incorporation and bylaws, each as amended to date, minutes of proceedings and
consents of the Board of Directors of the Company, and originals or copies of
such documents, instruments, records, and certificates of public officials and
officers of the Company as we have deemed necessary. In connection with such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as copies, and we have also made
such other investigations of fact and law as we have deemed relevant in
connection with the opinion set forth below. In rendering this opinion, we have
relied upon the accuracy of the certificates, documents, instruments,
certificates, and records we have examined as to the matters of fact covered
thereby.
Based on the foregoing, we are of the opinion that upon their issuance
against payment therefore, the Shares will be duly and validly issued, and will
be fully-paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement
under the caption "Legal Matters" and we also hereby consent to the filing of
this opinion as an exhibit to the Registration Statement. In giving the
foregoing consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Sincerely,
JAMIESON, MOORE, PESKIN & SPICER
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated January
28, 1998, with respect to Unity Bancorp Inc.'s (Unity's) 1997 financial
statements which were previously incorporated by reference into Unity's Form
10-KSB for the year ended December 31, 1997 and to all references to our Firm in
this Registration Statement.
Arthur Andersen LLP
Roseland, New Jersey
October 14, 1998
EXHIBIT NO. 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John F. Tremblay and/or Kevin Killian as his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments and post-effective amendments to that
certain Registration Statement of Unity Bancorp, Inc. on Form S-3, and to file
the same with all exhibits thereto, and grants unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in one or more counterparts.
The foregoing Power of Attorney was prepared in conjunction with the
Registration Statement on Form S-3 and has been duly signed by the following
persons in the capacities and dates indicated.
/s/ ROBERT J. VAN VOLKENBURGH
___________________________________ Date: October 13, 1998
Robert J. Van Volkenburgh
Chairman of the Board
(Principal Executive Officer)
/s/ DAVID D. DALLAS
___________________________________ Date: October 13, 1998
David D. Dallas, Director
/s/ PETER P. DETOMMASO
___________________________________ Date: October 13, 1998
Peter P. DeTommaso, Director
/s/ CHARLES S. LORING
___________________________________ Date: October 13, 1998
Charles S. Loring, Director
/s/ KEVIN KILLIAN
___________________________________ Date: October 13, 1998
Kevin Killian, Chief
Financial Officer
(Principal Financial and
Accounting Officer)
/s/ JOHN F. TREMBLAY
___________________________________ Date: October 13, 1998
John F. Tremblay, Director
