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Registration No. 333-_____
Filed March 8, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Independence Community Bank Corp.
---------------------------------
(Exact Name of Registrant as specified in its Articles of Incorporation)
Delaware 11-3387931
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(State of incorporation) (IRS Employer Identification No.)
195 Montague Street
Brooklyn, New York 11201
- -----------------------------------------------------------------------------
(Address of principal executive offices, including zip code)
1998 Stock Option Plan
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(Full Title of the Plan)
Copies to:
Charles J. Hamm Philip R. Bevan, Esq.
Chairman, President and Chief Executive Officer Cristin Zeisler, Esq.
Independence Community Bank Corp. Elias, Matz, Tiernan &
195 Montague Street Herrick L.L.P.
Brooklyn, New York 11201 734 15th Street N.W.
(718) 722-5300 Washington, D.C. 20005
- -------------------------------------- (202) 347-0300
(Name, address and telephone number of
agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common Stock, 6,101,608 $13.3125 (3) $81,227,656.50 (3) $22,581.29
par value $0.01
Common Stock, 939,480 $14.9688 (4) $14,062,841.25 $3,909.47
par value $0.01 ------- -------------- ---------
Total 7,041,088(2) N/A $95,319,856.50 $26,490.76
--------- -------------- ----------
--------- -------------- ----------
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(1) Represents shares of the common stock, $0.01 par value per share
("Common Stock"), of Independence Community Bank Corp. (the "Company" or
"Registrant"), reserved for issuance pursuant to the 1998 Stock Option Plan
(the "Plan").
(2) Represents shares currently reserved for issuance pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended ("Securities Act"). The Proposed
Maximum Offering Price Per Share is equal to the weighted average exercise
price for options to purchase 6,101,608 shares of Common Stock which have
been granted under the Plan as of the date hereof but not yet exercised.
(4) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The
Proposed Maximum Offering Price Per Share for 939,480 shares for which
stock options have not been granted under the Plan is equal to the average
of the high and low sale price of the Common Stock of the Company on March
1, 1999 on the Nasdaq National Market.
__________________________
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. Section 230.462.
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PART I*
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
March 31, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998.
(c) The description of the Common Stock of the Company as
contained in Item 1, "Description of Registrant's Securities to be
Registered" in the Company's Registration Statement on Form 8-A as filed
on October 17, 1997 (File No. 000-23229).
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof and prior to the filing of a post-
effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold.
Any statement contained in this Registration Statement, or in a document
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable because the Company's Common Stock was registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
In accordance with the General Corporation law of the State of Delaware,
Articles 9 and 10 of the Registrant's Certification of Incorporation and
Article VI of the Registrant's Bylaws provide as follows:
Article 9 of Certification of Incorporation
Liability of Directors and Officers. The personal liability of the
directors and officers of the Corporation for monetary damages shall be
eliminated to the fullest extent permitted by the General Corporation Law of the
State of Delaware as it exists on the effective date of this Certificate of
Incorporation or as such law may be thereafter in effect. No amendment,
modification or repeal of this Article 9 shall adversely affect the rights
provided hereby with respect to any claim, issue or matter in any proceeding
that is based in any respect on any alleged action or failure to act prior to
such amendment, modification or repeal.
Article 10 of Certificate of Incorporation
Indemnification. The Corporation shall indemnify its directors,
officers, employees, agents and former directors, officers, employees and
agents, and any other persons serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
incurred in connection with any pending or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, with
respect to which such director, officer, employee, agent or other person is a
party, or is threatened to be made a party, to the full extent permitted by
the General Corporation Law of the State of Delaware, provided, however, that
the Corporation shall not be liable for any amounts which may be due to any
person in connection with a settlement of any action, suit or proceeding
effected without its prior written consent or any action, suit or proceeding
initiated by any person seeking indemnification hereunder without its prior
written consent. The indemnification provided herein (i) shall not be deemed
exclusive of any other right to which any person seeking indemnification may
be entitled under any bylaw, agreement or vote of shareholders or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in any other capacity, and (ii) shall
inure to the benefit of the heirs, executors and administrators of any such
person. The
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Corporation shall have the power, but shall not be obligated, to
purchase and maintain insurance on behalf of any person or persons enumerated
above against any liability asserted against or incurred by them or any of them
arising out of their status as corporate directors, officers, employees, or
agents whether or not the Corporation would have the power to indemnify them
against such liability under the provisions of this Article 10.
Article VI of Bylaws - Indemnification, etc. of Directors, Officers and
Employees
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal, administrative or investigative action, suit
or proceeding described in Section 6.1 may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by
the Board of Directors only upon receipt of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that
the person is not entitled to be indemnified by the Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under the Corporation's Certificate
of Incorporation, any agreement, vote of stockholders or disinterested directors
or otherwise, both as to actions in their official capacity and as to actions in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of the heirs, executors and administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer of employee of the Corporation, or is or was serving
at the request of the corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him or incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of its
Certificate of Incorporation or this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to advance
expenses to a director, officer or employee provided in this Article VI shall be
in the nature of a contract between the Corporation and each such person, and
no amendment or repeal of any provision of this Article VI shall alter, to the
detriment of such person, the right of such person to the advance of expenses or
indemnification related to a claim based on an act or failure to act which took
place prior to such amendment or repeal.
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Item 7. Exemption from Registration Claimed.
Not applicable because no restricted securities will be reoffered or resold
pursuant to this Registration Statement.
Item 8. Exhibits
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
No. Exhibit
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4 Common Stock Certificate*
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
as to the legality of the securities
10.1 1998 Stock Option Plan**
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(contained in the opinion included as Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of attorney for any subsequent amendments
(located in the signature pages of this Registration
Statement).
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* Incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 333-30757).
**Incorporated by reference from Appendix A of the Company's proxy
statement for the September 25, 1998 annual meeting of stockholders filed with
the Commission on August 17, 1998.
Item 9. Undertakings.
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
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the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change in such information in the
Registration Statement; provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Brooklyn, New York, on this 5th day of March 1999.
Independence Community Bank Corp.
By: /s/ Charles J. Hamm
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Charles J. Hamm
Chairman, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby makes, constitutes and appoints Charles J. Hamm his or her true
and lawful attorney, with full power to sign for such person and in such
person's name and capacity indicated below, and with full power of
substitution any and all amendments to this Registration Statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
Name Title Date
- ------------------ --------------------- --------------------
/s/ Charles J. Hamm Chairman, President and Chief
- ------------------- Executive Officer
Charles J. Hamm (principal executive officer) March 5, 1999
/s/ Joseph S. Morgano Director, Executive Vice
- --------------------- President and Mortgage Officer March 5, 1999
Joseph S. Morgano
/s/ John B. Zurrell Executive Vice President
- -------------------- Chief Financial Officer
John B. Zurrell (principal financial officer) March 5, 1999
/s/ Willard N. Archie
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Willard N. Archie Director March 5, 1999
/s/ Robert D. Catell
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Robert D. Catell Director March 5, 1999
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Name Title Date
- ----------------------- ------------------- --------------------
/s/ Rohit M. Desai
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Rohit M. Desai Director March 5, 1999
/s/ Chaim Y. Edelstein
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Chaim Y. Edelstein Director March 5, 1999
/s/ Donald H. Elliott
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Donald H. Elliott Director March 5, 1999
/s/ Robert W. Gelfman
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Robert W. Gelfman Director March 5, 1999
/s/ Scott M. Hand
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Scott M. Hand Director March 5, 1999
/s/ Donald E. Kolowsky
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Donald E. Kolowsky Director March 5, 1999
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Janine Luke Director March 5, 1999
/s/ Malcolm MacKay
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Malcolm MacKay Director March 5, 1999
/s/ Wesley D. Ratcliff
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Wesley D. Ratcliff Director March 5, 1999
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EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
March 5, 1999
Board of Directors
Independence Community Bank Corp.
195 Montague Street
Brooklyn, New York 11201
Re: Registration Statement on Form S-8
7,041,088 Shares of Common Stock
Ladies and Gentlemen:
We are special counsel to Independence Community Bank Corp, a Delaware
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 7,041,088 shares of common
stock, par value $0.01 per share ("Common Stock"), to be issued under the
Corporation's 1998 Stock Option Plan (the "Plan") upon the exercise of stock
options and/or appreciation rights (referred to as "Option Rights"). The
Registration Statement also registers an indeterminate number of additional
shares which may be necessary under the Plan to adjust the number of shares
reserved thereby for issuance as the result of a stock split, stock dividend or
similar adjustment of the outstanding Common Stock of the Corporation. We have
been requested by the Corporation to furnish an opinion to be included as an
exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration Statement, the
Certificate of Incorporation and Bylaws of the Corporation, the Plan, a specimen
stock certificate evidencing the Common Stock of the Corporation and such other
corporate records and documents as we have deemed appropriate. We are relying
upon the originals, or copies certified or otherwise identified to our
satisfaction, of the corporate records of the Corporation and such other
instruments, certificates and representations of public officials, officers and
representatives of the Corporation as we have deemed relevant as a basis for
this opinion. In addition, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents furnished to us and the conformance in all respects of copies to
originals. Furthermore, we have made such factual inquiries and reviewed
such laws as we determined to be relevant for this opinion.
For purposes of this opinion, we have also assumed that (i) the shares of
Common Stock issuable pursuant to Option Rights granted under the terms of the
Plan will continue to be validly authorized on the dates the Common Stock is
issued pursuant to the Option Rights; (ii) on the dates
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Board of Directors
March 5, 1999
Page 2
the Option Rights are exercised, the Option Rights granted under the terms of
the Plan will constitute valid, legal and binding obligations of the Corporation
and will (subject to applicable bankruptcy, moratorium, insolvency, reor-
ganization and other laws and legal principles affecting the enforceability
of creditors' rights generally) be enforceable as to the Corporation in accord-
ance with their terms; (iii) no change occurs in applicable law or the pertinent
facts; and (iv) the provisions of "blue sky" and other securities laws as may be
applicable will have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth herein,
we are of the opinion as of the date hereof that the shares of Common Stock to
be issued pursuant to the Plan, when issued and sold pursuant to the Plan and
upon receipt of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Philip Ross Bevan
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Philip Ross Bevan, a Partner
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Exhibit 23.2
Consent of Ernst & Young LLP
Independent Accountants
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-________) pertaining to the 1998 Stock Option Plan of Independence
Community Bank Corp. of our report dated June 2, 1998, with respect to the
consolidated financial statements of Independence Community Bank Corp. included
in its Annual Report (Form 10-K) for the year ended March 31, 1998, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
March 5, 1999
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