Registration No. _________
As filed with the Securities and Exchange Commission on November 13, 2003
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
FLUSHING FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 11-3209278
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
144-51 NORTHERN BOULEVARD, FLUSHING NY 11354
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(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION INCENTIVE PLAN
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(Full title of the plan)
Michael J. Hegarty
Flushing Financial Corporation, 144-51 Northern Boulevard, Flushing, NY 11354
(718) 961-5400
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(Name, address and telephone number of agent for service)
Copy to: Gloria W. Nusbacher, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, N.Y. 10004
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered** Per Share*** Offering Price*** Fee
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Common Stock,
par value 600,000 shares $25.92 $15,554,628 $1,259
$.01 per share*
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(see footnotes on following page)
FOOTNOTES
* 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.
** 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.
*** 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 58,646 shares of
Common Stock as to which stock options were granted prior to the date
hereof, the registration fee is based on the option exercise price of
$20.48 per share with respect to 47,396 of such shares and $20.20 with
respect to 11,250 of such shares, and with respect to the balance of the
shares being registered (consisting of 541,354 shares of Common Stock),
the registration fee is based on a price of $26.52 which is the average
of the high and low sales prices of the Common Stock on November 7, 2003
as quoted on the Nasdaq National Market.
Securities offered and sold under the benefit plan which is the subject
of this Registration Statement were also registered by means of
Registration Statements on Form S-8 No. 333-3878 filed on April 22,
1996, No. 333-85639 filed on August 20, 1999, and No. 333-89450 filed on
May 31, 2002.
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, 2002;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 2002; and
(c) The description of the Company's Common Stock and Rights
contained in the Company's registration statements therefor and
subsequent amendments thereof.
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.
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 court approval 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 claim, issue or matter
referred to 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.
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
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
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
NUMBER DESCRIPTION METHOD OF FILING
4.1 Certificate of Incorporation Filed as Exhibit 3.1 to
of the Company Registration Statement on Form
S-1 (No. 33-96488)
4.2 Amendment to Certificate of Filed as Exhibit 4.2 to
Incorporation Registration Statement on Form
S-8 (No. 333-89450) filed on
May 31, 2002
4.3 Certificate of Designations Filed as Exhibit 3.3 to Form
of Series A Junior 10-Q for the quarter ended
Participating Preferred September 30, 2002
Stock of the Company
4.4 By-Laws of the Company Filed as Exhibit 3.2 to
Registration Statement on Form
S-1 (No. 33-96488)
4.5 Rights Agreement dated as of Filed as an Exhibit to the
September 17, 1996 between Company's Report on Form 8-K
the Company and EquiServe filed September 30, 1996
Trust Company N.A.
(successor to State Street
Bank and Trust Company), as
Rights Agent
4.6 1996 Stock Option Incentive Filed as Exhibit 10.18 to the
Plan (as amended through May Company's Form 10-Q for the
20, 2003) quarter ended September 30, 2003
5.1 Opinion of Hughes Hubbard & Filed herewith
Reed LLP
23.1 Consent of Filed herewith
PricewaterhouseCoopers LLP
23.2 Consent of Hughes Hubbard & Contained in Exhibit 5.1
Reed LLP
24.1 Powers of Attorney Filed herewith
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.
(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.
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 13th day of
November, 2003.
FLUSHING FINANCIAL CORPORATION
By: /S/ MICHAEL J. HEGARTY
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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 13th day of November, 2003.
SIGNATURE CAPACITY
* President and Chief Executive
--------------------------------- Officer and Director (Principal
Michael J. Hegarty Executive Officer)
* Director and Chairman
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Gerard P. Tully, Sr.
* Executive Vice President and Chief
--------------------------------- Operating Officer and Director
John R. Buran
* Senior Vice President, Chief
--------------------------------- Financial Officer and Treasurer
Monica C. Passick (Principal Financial and Accounting
Officer)
SIGNATURE CAPACITY
* Director
---------------------------------
James D. Bennett
* Director
---------------------------------
Louis C. Grassi
* Director
---------------------------------
John J. McCabe
* Director
---------------------------------
John O. Mead
* Director
---------------------------------
Vincent F. Nicolosi
* Director
---------------------------------
Franklin F. Regan, Jr.
* Director
---------------------------------
John E. Roe, Sr.
* Director
---------------------------------
Michael J. Russo
* By: /S/ MICHAEL J. HEGARTY,
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as authorized by Power of
Attorney filed as Exhibit 24.1
to this Registration Statement
EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING
4.1 Certificate of Incorporation Filed as Exhibit 3.1 to
of the Company Registration Statement on Form
S-1 (No. 33-96488)
4.2 Amendment to Certificate of Filed as Exhibit 4.2 to
Incorporation Registration Statement on Form
S-8 (No. 333-89450) filed on
May 31, 2002
4.3 Certificate of Designations Filed as Exhibit 3.3 to Form
of Series A Junior 10-Q for the quarter ended
Participating Preferred September 30, 2002
Stock of the Company
4.4 By-Laws of the Company Filed as Exhibit 3.2 to
Registration Statement on Form
S-1 (No. 33-96488)
4.5 Rights Agreement dated as of Filed as an Exhibit to the
September 17, 1996 between Company's Report on Form 8-K
the Company and EquiServe filed September 30, 1996
Trust Company N.A.
(successor to State Street
Bank and Trust Company), as
Rights Agent
4.6 1996 Stock Option Incentive Filed as Exhibit 10.18 to the
Plan (as amended through May Company's Form 10-Q for the
20, 2003) quarter ended September 30, 2003
5.1 Opinion of Hughes Hubbard & Filed herewith
Reed LLP
23.1 Consent of Filed herewith
PricewaterhouseCoopers LLP
23.2 Consent of Hughes Hubbard & Contained in Exhibit 5.1
Reed LLP
24.1 Powers of Attorney Filed herewith