Unassociated Document
As
filed with the Securities and Exchange Commission on
August 16, 2006
Registration
No. 333-
UNITED
STATES 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
|
6035
|
11-3209278
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(Primary
Standard Industrial
Classification
Code Number)
|
(I.R.S.
Employer
Identification
Number)
|
1979
Marcus Avenue, Suite E140
Lake
Success, New York 11042
(718)
961-5400
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s
Principal Executive Offices)
ATLANTIC
LIBERTY FINANCIAL CORP. 2003 INCENTIVE STOCK BENEFIT PLAN
(Full
title of the Plan)
______________________
Mr.
John R. Buran
President
and Chief Executive Officer
Flushing
Financial Corporation
1979
Marcus Avenue, Suite E140
Lake
Success, New York 11042
(718)
961-5400
(Address,
Including Zip Code, and Telephone Number,
Including
Area Code, of Agent for Service)
Copy
to:
Douglas
J. McClintock, Esq.
Thacher
Proffitt & Wood LLP
Two
World Financial Center
New
York, NY 10281
(212)
912-7400
(Name
and
address, including Zip Code, telephone number and area code, of agent for
service)
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be Registered
|
Amount
to be Registered (1)
|
Proposed
Maximum Offering
Price
Per Share (2)
|
Proposed
Maximum
Aggregate
Offering Price (2)
|
Amount
of
Registration
Fee
|
|
Common
Stock, $0.01 par value
|
212,687
|
$17.02
|
$
3,618,869.31
|
$387
|
| (1) |
This
Form S-8 is registering 212,687 shares of common stock of Flushing
Financial Corporation representing the number of shares to be issued
upon
the exercise of options outstanding under the Atlantic Liberty Financial
Corp. 2003 Incentive Stock Benefit Plan, after giving effect to the
exchange ratio used in the merger of Flushing Financial with Atlantic
Liberty Financial Corp. of 1.43 of a share of Flushing Financial common
stock for each share of Atlantic Liberty common stock outstanding at
the
effective time of the merger.
|
| (2) |
Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457 of the Securities Act of 1933 (“Securities Act”), based on
the average of the daily high and low sales prices of common stock
of the
Flushing Financial on the Nasdaq National Market at the close of trading
as of August 14, 2006.
|
EXPLANATORY
NOTE
On
June
30, 2006, Atlantic Liberty Financial Corp. (“Atlantic Liberty”) merged with and
into Flushing Financial Corporation (the “Registrant”), with the Registrant as
the surviving corporation. As a result of the merger, each outstanding share
of
Atlantic Liberty common stock was converted into the right to receive 1.43
shares of the Registrant’s common stock, or a cash payment of $24.00, or a
combination of the Registrant’s common stock and cash.
This
registration statement covers 212,687 shares of common stock of the Registrant,
available for issuance upon exercise of outstanding options granted under the
Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit Plan, which the
Registrant assumed pursuant to the Agreement and Plan of Merger, dated December
20, 2005, by and between the Registrant and Atlantic Liberty.
Each
outstanding stock option issued pursuant to the Atlantic Liberty Financial
Corp.
2003 Incentive Stock Benefit Plan prior to the effective time of the merger
is
no longer exercisable for shares of Atlantic Liberty common stock, but instead,
constitutes an option to acquire, on the same terms and conditions as were
applicable under such option immediately prior to the consummation of the
merger, that number of shares of the Registrant’s common stock equal to the
product of the number of shares of Atlantic Liberty and the exchange ratio
of
1.43. The exercise price per share of the Registrant’s common stock under each
new option will be equal to the quotient of (i) the per share exercise price
of
the Atlantic Liberty option being converted and (ii) the exchange ratio of
1.43,
rounded up to the next whole cent.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan
Information.
Not
required to be filed with the Securities and Exchange Commission (the
“Commission”) pursuant to the Note to Part I of Form S-8.
Item
2. Registrant
Information and Employee Plan Annual Information.
Not
required to be filed with the Commission pursuant to the Note to Part I of
Form
S-8.
The
documents containing the information specified in this Part I will be sent
or
given to employees of the Registrant as specified by Rule 428(b)(1) of the
Securities Exchange Act of 1934, as amended (“Exchange Act”). Such documents
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424
of
the Exchange Act. The Registrant will provide without charge to each person
to
whom the prospectus is delivered, upon request of any such person, a copy of
any
or all of the documents incorporated herein by reference in Item 3 below (other
than exhibits to such documents). Written requests should be directed
to:
Human
Resources Department
Flushing
Financial Corporation
1979
Marcus Avenue, Suite E140
Lake
Success, NY 11042
Telephone
requests may be directed to (718) 961-5400. These documents and the documents
incorporated by reference in this registration statement pursuant to Item 3
of
Part II of this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART
II
Item
3. Incorporation
of Documents by Reference.
This
document incorporates by reference the following documents that have previously
been filed with the Commission by the Registrant:
| · |
Annual
Report on Form 10-K for the year ended December 31,
2005;
|
| · |
Quarterly
Report on Form 10-Q for the quarter ended March 31,
2006;
|
| · |
Quarterly
Report on Form 10-Q for the quarter ended June 30,
2006;
|
| · |
Current
Report on Form 8-K filed on February 22, 2006;
|
| · |
Current
Report on Form 8-K filed on April 26, 2006;
|
| · |
Current
Report on Form 8-K filed on May 16, 2006;
|
| · |
Current
Report on Form 8-K filed on May 17, 2006;
|
| · |
Current
Report on Form 8-K filed on June 8, 2006;
|
| · |
Current
Report on Form 8-K filed on June 22,
2006;
|
| · |
Current
Report on Form 8-K filed on July 3, 2006;
|
| · |
Current
Report on Form 8-K filed on August 16, 2006;
and
|
| · |
The
description of the Registrant’s common stock set forth in the registration
statement on Form 8-A, filed on September 25, 1995 pursuant to Section
12
of the Exchange Act, including any amendment or report filed with the
Commission for the purpose of updating this
description.
|
All
documents filed by the Registrant 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.
Item
6. Indemnification
of Directors and Officers.
Section
145 of the Delaware General Corporation Law inter
alia,
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, whether civil, criminal administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he 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, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Similar
indemnity is authorized for such person against expenses (including attorneys’
fees) actually and reasonably incurred in connection with the defense or
settlement of any threatened, pending or completed action or suit by or in
the
right of the corporation if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and
provided further that (unless a court of competent jurisdiction otherwise
provides) he shall not have been adjudged liable to the corporation. Any such
indemnification (unless ordered by a court) may be made by the corporation
only
as authorized in each specific case by the corporation upon a determination
that
indemnification of the present or former director, officer, employee or agent
is
proper because such person has met the applicable standard of conduct, which
indemnification shall be made in the case of a director or officer at the time
of the determination by the shareholders, a majority vote of disinterested
directors, a committee of disinterested directors or by independent legal
counsel in a written opinion, if there are no such directors or if such
directors so direct.
Section
145 further authorizes a corporation to purchase and maintain insurance 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 request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him against such liability under
Section 145.
Article
TENTH of the Registrant’s Certificate of Incorporation sets forth circumstances
under which directors, officers, employees and agents of the Registrant may
be
insured or indemnified against liability which they incur in their capacities
as
such:
TENTH.
(A) No
director of the Corporation shall be personally liable to the Corporation or
its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director’s duty of loyalty to the
Corporation or its stockholders, (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 Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended after the date of this Certificate of
Incorporation to authorize corporate action further eliminating or limiting
the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted
by
the Delaware General Corporation law, as so amended.
(B) The
Corporation shall indemnify to the fullest extent permitted by the laws of
the
State of Delaware as from time to time in effect any person who was or is a
party or is threatened to be made a party to, or otherwise requires
representation by counsel in connection with, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or
investigative, including an action by or in the right of the Corporation (a
“Proceeding”), by reason of the fact that such person is or was a director or
officer of the Corporation, or, while serving as a director or officer of the
Corporation, is or was serving, in any capacity, at the request of the
Corporation, any other corporation, partnership, joint venture, trust,
association or other enterprise, including service with respect to an employee
benefit plan, or by reason of any action alleged to have been taken or omitted
in such capacity, against judgments, fines, penalties, amounts paid in
settlement, and expenses (including attorneys’ fees and expenses, expenses and
cost of investigations, and expenses of enforcement of such person’s rights
under this Article TENTH) incurred by such person in connection with such
Proceeding; provided, however, that no such indemnification shall be required
for amounts paid in any settlement or other nonadjudicated disposition of any
Proceeding unless the Board of Directors of the Corporation has given its prior
consent to such settlement or disposition.
(C) The
right
to indemnification conferred by this Article TENTH shall also include the right
of such persons to be paid in advance by the Corporation for their expenses
to
the full extent permitted by the laws of the State of Delaware as from time
to
time in effect. The right to indemnification conferred on such persons by this
Article TENTH shall be a contract right and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators.
(D) The
Corporation may, to the extent authorized from time to time by the Board of
Directors, indemnify to the fullest extent permitted by the laws of the State
of
Delaware as from time to time in effect any person who was or is party or is
threatened to be made a party to, or otherwise requires representation by
counsel in connection with, any Proceeding, by reason of the fact that such
person is or was an employee (other than an officer) 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, partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan, or by reason of any action alleged to have been taken
or
omitted in such capacity.
The
rights and authority conferred in this Article TENTH shall not be exclusive
of
any other right which any person may have or hereafter acquire under any
statute, provision of this Certificate of Incorporation or the By-Laws of the
Corporation, agreement, vote of stockholders or disinterested directors or
otherwise.
Notwithstanding
anything to the contrary contained in this Article TENTH, the Corporation shall
not indemnify any person in connection with any Proceeding initiated by such
person against any other person or entity other than the Corporation or any
Subsidiary unless such Proceeding was authorized by the Board of Directors
of
the Corporation.
Neither
the amendment nor repeal of this Article TENTH, nor the adoption of any
provision of the Certificate of Incorporation or By-Laws or of any statute
inconsistent with this Article TENTH, shall eliminate or reduce the effect
of
this Article TENTH in respect of any acts or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision.
Item
7. Exemption
from Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
|
4.1
|
Atlantic
Liberty Financial Corp. 2003 Incentive Stock Benefit
Plan
|
|
4.2
|
Certificate
of Incorporation of the Registrant*
|
|
4.3
|
Form
of Stock Option Assumption Agreement
|
|
4.4
|
Bylaws
of Flushing Financial Corporation*
|
|
5.1
|
Opinion
of Thacher Proffitt & Wood LLP,
counsel for the Registrant, as to legality
|
|
23.1
|
Consent
of Thacher Proffitt & Wood LLP
(included in Exhibit 5.1)
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP
|
___________
*
Incorporated by reference to the Exhibits to Flushing Financial Corporation’s
Registration Statement on Form S-1 (Registration
No. 333-96488).
Item
9. Undertakings.
(a) Rule
415 offering.
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;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; 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 to
such information in the registration statement.
Provided,
however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement
is on Form S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished
to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration
statement.
(2) That,
for
the purpose of determining 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.
(b) Filings
incorporating subsequent Exchange Act documents by reference.
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
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.
(c) Incorporated
annual and quarterly reports.
The
undersigned Registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given,
the
latest annual report to security holders that is incorporated by reference
in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to
be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Filing
of registration on Form S-8.
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 for 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Village of Lake
Success, State of New York, on August 15, 2006.
Flushing
Financial Corporation
By:
/s/
John R. Buran
John
R.
Buran
President
& Chief Executive Officer
POWER
OF ATTORNEY
We,
the
undersigned directors and officers of Flushing Financial Corporation (the
“Registrant”) severally constitute and appoint John R. Buran with full power of
substitution, our true and lawful attorney and agent, to do any and all things
and acts in our names in the capacities indicated below which said John R.
Buran
may deem necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this registration
statement on Form S-8, including specifically, but not limited to, power and
authority to sign for us or any of us in our names in the capacities indicated
below the registration statement and any and all amendments (including
post-effective amendments) thereto; and we hereby ratify and confirm all that
said John R. Buran shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Name
|
Title
|
Date
|
|
/s/
John R.
Buran
John
R. Buran
|
Director,
President and Chief Executive Officer
|
August
15, 2006
|
|
/s/
Gerard P.
Tully
Gerard
P. Tully
|
Director
and Chairman of the Board
|
August
15, 2006
|
|
/s/
David W.
Fry
David
W. Fry
|
Senior
Vice President and
Chief
Financial Officer
|
August
15, 2006
|
|
/s/
Steven J.
D’Iorio
Steven
J. D’Iorio
|
Director
|
August
15, 2006
|
|
/s/
Louis C.
Grassi
Louis
C. Grassi
|
Director
|
August
15, 2006
|
|
/s/
Michael J.
Hegarty
Michael
J. Hegarty
|
Director
|
August
15, 2006
|
|
/s/
John J.
McCabe
John
J. McCabe
|
Director
|
August
15, 2006
|
|
/s/
Vincent F. Nicolosi
Vincent
F. Nicolosi
|
Director
|
August
15, 2006
|
|
/s/
Donna M. O’
Brien
Donna
M. O’Brien
|
Director
|
August
15, 2006
|
|
/s/
Franklin F. Regan,
Jr.
Franklin
F. Regan, Jr.
|
Director
|
August
15, 2006
|
|
/s/
John E. Roe,
Sr.
John
E. Roe, Sr.
|
Director
|
August
15, 2006
|
|
/s/
Michael J.
Russo
Michael
J. Russo
|
Director
|
August
15, 2006
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
4.1
|
Atlantic
Liberty Financial Corp. 2003 Incentive Stock Benefit
Plan
|
|
4.2
|
Certificate
of Incorporation of the Registrant*
|
|
4.3
|
Form
of Stock Option Assumption Agreement
|
|
4.4
|
Bylaws
of Flushing Financial Corporation*
|
|
5.1
|
Opinion
of Thacher Proffitt & Wood LLP,
counsel for the Registrant, as to legality
|
|
23.1
|
Consent
of Thacher Proffitt & Wood LLP (included
in Exhibit 5.1)
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP
|
|
24.1
|
Power
of attorney (included on the signature pages of this registration
statement)
|
_________
*
Incorporated by reference to the Exhibits to Flushing Financial Corporation’s
Registration Statement on Form S-1 (Registration
No. 333-96488).