Registration No. __________
As filed with the Securities and Exchange Commission on August 20, 1999
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
FLUSHING FINANCIAL CORPORATION
------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 11-3209278
------------------------------- -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
144-51 Northern Boulevard, Flushing, NY 11354
--------------------------------------- -------------------
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION INCENTIVE PLAN
AND
1996 RESTRICTED STOCK INCENTIVE PLAN
------------------------------------
(Full title of the plans)
Michael J. Hegarty Copy to: Gloria W.
Nusbacher, Esq.
Flushing Financial Corporation Hughes Hubbard & Reed LLP
144-51 Northern Boulevard One Battery Park Plaza
Flushing, N.Y. 11354 New York, N.Y. 10004
(718) 961-5400 (212) 837-6719
- --------------------------------------------------------------------------------
(Name, address and telephone number
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered<F2> Per Share<F3> Offering Price<F3> Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value 412,500 shares $15.62 $6,442,593.70 $1,791.00
$.01 per share<F1>
- -------------------------------------------------------------------------------------
</TABLE>
(see footnotes on following page)
Page 1 of 17 Pages. Exhibit Index appears at Page 12.
<PAGE>
FOOTNOTES
- ---------
<F1> Each share of Common Stock includes a related right (a "Right") to
purchase junior participating preferred stock of the Company. The
Rights are not exercisable or transferable apart from the Common Stock
at this time, and accordingly no independent value is attributable to
such Rights.
<F2> This Registration Statement also relates to such indeterminate number
of additional shares (and related Rights) as may be issuable pursuant
to stock splits, stock dividends, or similar transactions.
<F3> The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for
the purpose of determining the registration fee pursuant to Rule
457(h) under the Securities Act of 1933. With respect to 76,725 of
such shares of Common Stock as to which stock options were granted
prior to the date hereof, the registration fee is based on the
weighted average exercise price per share of $15.31, and with respect
to the balance of the shares being registered (consisting of 335,775
shares of Common Stock), the fee is based on a price of $15.69 per
share, which is the average of the high and low sale prices of the
Common Stock on August 16, 1999, as quoted on the Nasdaq National
Market.
Securities offered and sold under the benefit plans which are the subject of
this Registration Statement were also registered by means of a Registration
Statement on Form S-8 (No. 333-3878) filed with the Securities and Exchange
Commission on April 22, 1996. Prospectus documents used in connection with this
Registration Statement will also apply with respect to such prior Registration
Statement.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents filed by Flushing Financial Corporation (the
"Company") under the Securities Exchange Act of 1934 (the "Exchange Act") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1998; and
(c) The description of the Company's Common Stock and Rights
contained in the Company's registration statements therefor and any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and 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 by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in a
subsequently filed document which is also incorporated by reference herein
modifies or supersedes such statement.
Item 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
3
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
A similar standard of care is applicable in the case of derivative
actions to which such a person is or was a party by reason of such person's
status or capacity as described above, except that indemnification only extends
to expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such an action, and the
DGCL requires approval by the court in which such action was brought before
there can be any indemnification where the person seeking indemnification has
been found liable to the corporation. Additionally, the corporation is required
to indemnify its directors and officers against expenses (including attorneys'
fees) actually and reasonably incurred by such person to the extent that such
directors or officers have been successful on the merits or otherwise in defense
of any such action, suit or proceeding or in defense of any claim, issue or
matter referred to in Section 145 of the DGCL.
Unless ordered by a court, indemnification can be made by the
corporation only upon a determination, by one of several means, that
indemnification is proper in the circumstances because the party seeking
indemnification has met the applicable standard of conduct as set forth in
Section 145 of the DGCL. The indemnification provided by Section 145 of the DGCL
includes the right of an officer or director to be paid by the corporation the
expenses incurred in defending any such proceedings in advance of their final
disposition. Such advance payment of expenses, however, may be made only upon
delivery to the corporation by the indemnified party of an undertaking to repay
all amounts so advanced if it shall ultimately be determined that the person
receiving such payments is not entitled to be indemnified pursuant to Section
145 of the DGCL.
The rights to indemnification and advancement of expenses conferred
by Section 145 of the DGCL shall not be deemed exclusive of any other rights to
which the person seeking indemnification or advancement may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. In addition, Section 145 of the DGCL authorizes a Delaware
corporation to purchase and maintain insurance, at its expense, on behalf of any
person who is or was a director, officer, employee or agent of the corporation
or is or was serving at the corporation's request in such capacity for another
entity against any liability asserted against, or incurred by, such person in
any such capacity or arising out of such status, whether or not the corporation
4
<PAGE>
would have the power to indemnify such person against such liability under
Section 145 of the DGCL.
The Company's Certificate of Incorporation limits under certain
circumstances the personal liability of the Company's directors for a breach of
their fiduciary duty as directors. The provisions do not eliminate the liability
of a director (i) for a breach of the director's duty of loyalty to the Company
or its shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (relating to the declaration of dividends and purchase
or redemption of shares in violation of the DGCL), or (iv) for any transaction
from which the director derived an improper personal benefit.
Article TENTH of the Company's Certificate of Incorporation provides
that the Company shall indemnify to the fullest extent permitted by the laws of
the State of Delaware 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 proceeding
by reason of the fact that such person is or was a director or officer of the
Company. Article TENTH further provides that such persons have the right to be
paid in advance by the Company for their expenses to the full extent permitted
by the laws of the State of Delaware.
Flushing Savings Bank, FSB (the "Bank"), which is a wholly-owned
subsidiary of the Company, has the following provisions for the indemnification
of directors and officers:
Article XI of the Bank's Bylaws provides that, to the full extent
permitted by law, the Bank shall 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 proceeding by reason of the fact that such person is or was a
director or officer of the Bank. Article XI further provides that, to the full
extent permitted by law, the Bank shall advance or promptly reimburse upon
request any person entitled to indemnification thereunder for the reasonable
expenses, including attorneys' fees and expenses, reasonably incurred in
connection with any proceeding in advance of the final disposition thereof in
accordance with such procedures as the Board of Directors shall determine in
accordance with applicable law.
In addition, Article XI provides that upon resolution passed by the
Board of Directors, the Bank may purchase and maintain insurance to indemnify
directors and officers and others, whether or not entitled to indemnification
under Article XI of the Bylaws to the full extent permitted by law.
Regulations promulgated by the FDIC at 12 CFR 359 provide that an
insured depository institution or affiliated depository institution holding
company may make or agree to make reasonable indemnification payments to certain
persons, including officers and directors of the institution and its holding
company with respect to an administrative proceeding or civil action initiated
by any federal banking agency, only if: (i) the indemnification payments do not
pay or reimburse such person for a civil money penalty or judgment resulting
from any administrative or civil action instituted by any federal banking
agency, or for any other expense (including the amount of any settlement) which
results in a final order or settlement pursuant to which such person is assessed
5
<PAGE>
a civil money penalty, is removed from office or prohibited from participating
in the conduct of the affairs of the insured depository institution, or is
required to cease and desist from or take specified affirmative actions with
respect to such institution, and (ii) the board of directors of the insured
depository institution or depository institution holding company, in good faith,
determines in writing after due investigation and consideration that the person
acted in good faith and in a manner he/she believed to be in the best interests
of the institution; and that the payment of such expenses will not materially
adversely affect the institution's or holdings company's safety and soundness.
The Company and the Bank have entered into an Indemnity Agreement
with each of their executive officers and directors, which agreements provide
for mandatory indemnification for each such person to the full extent permitted
by law against judgments, fines, amounts paid in settlement, and expenses
incurred in connection with any claim arising out of such person's service to
the Company or the Bank unless he was adjudicated to have acted in bad faith,
deliberate dishonesty or for personal gain. The agreements provide for
advancement of expenses and specify procedures for determining entitlement to
indemnification in a particular case.
The Bank has a contract for insurance coverage under which the
Bank's officers and directors (as well as the Company) are indemnified under
certain circumstances with respect to litigation and other costs and liabilities
arising out of actual or alleged misconduct of such directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
Item 8. EXHIBITS
--------
<TABLE>
<CAPTION>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
<S> <C> <C>
4.1 Certificate of Incorporation of Filed as Exhibit 3.1 to the
the Company Company's Registration Statement
on Form S-1 (No. 33-96488)
4.2 By-Laws of the Company Filed as Exhibit 3.2 to the
Company's Registration Statement
on Form S-1 (No. 33-96488)
4.3 Rights Agreement, dated as of Filed as an Exhibit to the
September 17, 1996, between the Company's Form 8-K filed
Company and State Street Bank September 30, 1996
and Trust Company, as Rights
Agent
6
<PAGE>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
5.1 Opinion of Hughes Hubbard & Reed Filed herewith
LLP
23.1 Consent of Filed herewith
PricewaterhouseCoopers LLP
23.2 Consent of Hughes Hubbard & Reed Contained in Exhibit 5.1
LLP
24.1 Power of Attorney authorizing Filed herewith
Michael J. Hegarty to sign the
Registration Statement and all
amendments thereto on behalf of
certain directors and officers
of the Company
</TABLE>
Item 9. UNDERTAKINGS
------------
(a) The Company 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, represents 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 (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
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.
7
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
8
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 17th day of
August, 1999.
FLUSHING FINANCIAL CORPORATION
By: /S/ MICHAEL J. HEGARTY
-----------------------------------------
Michael J. Hegarty
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 17th day of August, 1999.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------- --------
<S> <C>
* President and Chief Executive
- ---------------------------------------- Officer and a Director (principal
Michael J. Hegarty executive officer)
* Director, Chairman of the Board
- ----------------------------------------
Gerard P. Tully, Sr.
* Senior Vice President, Chief
- ---------------------------------------- Financial Officer and Treasurer
Monica C. Passick (principal financial and accounting
officer)
* Director
- ----------------------------------------
James D. Bennett
9
<PAGE>
SIGNATURE CAPACITY
- --------- --------
Director
- ----------------------------------------
John M. Gleason
* Director
- ----------------------------------------
Louis C. Grassi
* Director
- ----------------------------------------
Robert A. Marani
* Director
- ----------------------------------------
John O. Mead
* Director
- ----------------------------------------
James F. McConnell
* Director
- ----------------------------------------
Vincent F. Nicolosi
* Director
- ----------------------------------------
Franklin F. Regan, Jr.
* Director
- ----------------------------------------
John E. Roe, Sr.
* Director
- ----------------------------------------
Michael J. Russo
</TABLE>
10
<PAGE>
- ------------------------------------------------
* By: /S/ MICHAEL J. HEGARTY
----------------------------------------
Michael J. Hegarty, for
himself and as authorized
by Power of Attorney filed
as Exhibit 24.1 to this
Registration Statement
11
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
<S> <C> <C>
4.1 Certificate of Incorporation of Filed as Exhibit 3.1 to the
the Company Company's Registration Statement
on Form S-1 (No. 33-96488)
4.2 By-Laws of the Company Filed as Exhibit 3.2 to the
Company's Registration Statement
on Form S-1 (No. 33-96488)
4.3 Rights Agreement, dated as of Filed as an Exhibit to the
September 17, 1996, between the Company's Form 8-K filed
Company and State Street Bank September 30, 1996
and Trust Company, as Rights
Agent
5.1 Opinion of Hughes Hubbard & Reed Filed herewith
LLP
23.1 Consent of Filed herewith
PricewaterhouseCoopers LLP
23.2 Consent of Hughes Hubbard & Reed Contained in Exhibit 5.1
LLP
24.1 Power of Attorney authorizing Filed herewith
Michael J. Hegarty to sign the
Registration Statement and all
amendments thereto on behalf of
certain directors and officers
of the Company
12
</TABLE>
Exhibit 5.1
August 18, 1999
Flushing Financial Corporation
144-51 Northern Boulevard
Flushing, NY 13354
Ladies & Gentlemen:
Re: 1996 Stock Option Incentive Plan and
1996 RESTRICTED STOCK INCENTIVE PLAN
------------------------------------
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Flushing Financial
Corporation (the "Company") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to 412,500 shares (the "Shares") of common stock, par value $.01
per share of the Company and related rights to purchase shares of junior
participating preferred stock (the "Rights") to be issued in accordance with the
provisions of the Company's 1996 Stock Option Incentive Plan, as amended (the
"Stock Option Plan") and the Company's 1996 Restricted Stock Incentive Plan, as
amended (the "Restricted Stock Plan") (collectively, the "Plans").
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith. The law covered by the opinions
expressed herein is limited to the Federal Law of the United States and the
General Corporation Law of the State of Delaware. We are not members of the
Delaware Bar.
Based upon and subject to the foregoing, we are of the opinion that
when (i) the applicable provisions of the Securities Act and of such "Blue Sky"
or other state securities laws as may be applicable shall have been complied
with, (ii) the Shares deliverable upon exercise of stock options shall have been
issued for cash or other consideration in an amount at least equal to the
aggregate par value of such Shares and in accordance with the terms of the Stock
13
<PAGE>
Option Plan, (iii) the Shares delivered as restricted stock (subject to
forfeiture upon a failure to render specified future services) shall have been
issued in consideration of the payment of cash or the rendition of prior
services in an amount at least equal to the aggregate par value of such Shares,
or delivered from the treasury of the Company, in either case in accordance with
the terms of the Restricted Stock Plan, and (iv) the Share certificates shall
have been duly executed and delivered, (a) the Shares will be legally issued,
fully paid and nonassessable, and (b) the Rights attached to such Shares, when
issued in accordance with the terms of the Rights Agreement, dated as of
September 17, 1996, between the Company and State Street Bank and Trust Company,
as Rights Agent, will be legally issued.
In reaching our opinion with respect to the Shares issued as
restricted stock described in clause (iii) above, we have concluded that the
fact that such Shares are subject to forfeiture if the recipient thereof fails
to provide services as specified in the grant letter with respect thereto should
be regarded as substantially equivalent to a binding commitment to pay the
balance of the purchase price over the amount paid in cash or prior services
upon issuance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Hughes Hubbard & Reed LLP
14
PRICEWATERHOUSECOOPERS
- --------------------------------------------------------------------------------
PricewaterhouseCoopers LLP
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 596-8000
Facsimile: (212) 596-8910
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated January 26, 1999, relating to the consolidated
financial statements of Flushing Financial Corporation and Subsidiaries as of
December 31, 1998 and 1997 and for the years ended December 31, 1998, 1997, and
1996, incorporated by reference in the Annual Report on Form 10-K of Flushing
Financial Corporation for the year ended December 31, 1998. We also consent to
the reference to our firm under the heading "Experts" in the prospectus
documents relating to the Plans which are the subject of this Registration
Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
August 17, 1999
15
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does
hereby constitute and appoint each of Michael J. Hegarty and Monica C. Passick,
with full power of substitution, his true and lawful attorney to execute in his
name, place and stead a Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933 of shares which may be issued under the Flushing
Financial Corporation 1996 Stock Option Incentive Plan or the Flushing Financial
Corporation 1996 Restricted Stock Incentive Plan, including without limitation
any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same, with all exhibits thereto and any
other documents in connection therewith, with the Securities and Exchange
Commission. Such attorney and his substitutes shall have and may exercise all
powers to act hereunder. Each of the undersigned does hereby ratify and confirm
all that said attorney and agent shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his name
hereto as of this 17th day of August, 1999.
/S/ MICHAEL J. HEGARTY /S/ GERARD P. TULLY, SR.
- ------------------------------------ ------------------------------------
Michael J. Hegarty Gerard P. Tully, Sr.
/S/ MONICA C. PASSICK /S/ JAMES D. BENNETT
- ------------------------------------ ------------------------------------
Monica C. Passick James D. Bennett
/S/ LOUIS C. GRASSI
- ------------------------------------ ------------------------------------
John M. Gleason Louis C. Grassi
/S/ ROBERT A. MARANI /S/ JOHN O. MEAD
- ------------------------------------ ------------------------------------
Robert A. Marani John O. Mead
/S/ JAMES F. MCDONNELL /S/ VINCENT F. NICOLOSI
- ------------------------------------ ------------------------------------
James F. McConnell Vincent F. Nicolosi
16
<PAGE>
/S/ FRANKLIN F. REGAN, JR. /S/ JOHN E. ROE, SR.
- ------------------------------------ ------------------------------------
Franklin F. Regan, Jr. John E. Roe, Sr.
/S/ MICHEL J. RUSSO
- ------------------------------------
Michel J. Russo
17
