Registration No. __________
As filed with the Securities and Exchange Commission on May 31, 2005
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UNITED STATES
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.)
1979 MARCUS AVENUE, SUITE E140,
LAKE SUCCESS, NY 11042
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(Address of Principal Executive Offices) (Zip Code)
2005 OMNIBUS INCENTIVE PLAN
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(Full title of the plans)
John R. Buran
Flushing Financial Corporation,
1979 Marcus Avenue, Suite E140, Lake Success, NY 11042
(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 (2)(3) Per Share (2)(3) Offering Price (2)(3) Fee (2)(4)
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Common Stock,
par value 1,183,193 shares $16.95 $16.95 $1.00
$.01 per share (1)
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(see footnotes on following page)
FOOTNOTES
(1) Each share of Common Stock issued prior to September 30, 2006 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.
(2) Includes one share for which the associated registration fee is being
paid herewith, plus 1,183,192 shares previously registered on Form S-8
for delivery under the Company's 1996 Stock Option Incentive Plan
and/or 1996 Restricted Stock Incentive Plan which are available for
grant as of the date hereof and which, pursuant to contemporaneously
filed post-effective amendments to such prior registration statements
are being transferred to this registration statement, together with the
associated registration fee, for delivery under the Company's 2005
Omnibus Incentive Plan, as follows: (i) 111,698 shares transferred from
No. 333-85639 filed on August 20, 1999; (ii) 202,500 shares transferred
from No. 333-89450 filed on May 31, 2002; and (iii) 868,994 shares
transferred from No. 333-110454 filed on November 13, 2003.
Also includes up to a maximum of 2,062,383 shares previously registered
on Form S-8 which are subject to outstanding awards under the Company's
1996 Stock Option Incentive Plan and/or 1996 Restricted Stock Incentive
Plan, to the extent such shares become available for grant under the
Company's 2005 Omnibus Incentive Plan as a result of forfeitures of
awards or application of shares to satisfy tax withholding obligations.
Pursuant to contemporaneously filed post-effective amendments to such
prior registration statements, such shares shall be deemed transferred
to this registration statement, together with the associated
registration fee, when and to the extent such shares become available
for future grants under the Company's 2005 Omnibus Incentive Plan. Such
shares will be transferred from the prior registration statements as
follows: (i) up to 404,951 shares from No. 333-3878 filed on April 22,
1996; (ii) up to 816,427 shares from No. 333-85639 filed on August 20,
1999; (iii) up to 810,000 shares from No. 333-89450 filed on May 31,
2002; and (iv) up to 31,006 shares from No. 333-110454 filed on
November 13, 2003.
(3) 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.
(4) The proposed maximum offering price per share for the one new share
being registered is calculated solely for purposes of Rule 457(h) under
the Securities Act of 1933 and is based on a price of $16.95, which is
the average of the high and low sales prices of the Common Stock on May
23, 2005 as quoted on the Nasdaq National Market.
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, 2004;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 2004; 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.
Section 145 of the DGCL also authorizes a corporation to pay the
expenses (including attorneys' fees) incurred by an officer or director 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 DGCL also provides that its provisions regarding indemnification and
advancement of expenses are not exclusive of other rights which may be provided
by bylaw, agreement, 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
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 (such as the Bank) or affiliated depository
institution holding company (such as the 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 (A) that the person acted
in good faith and in a manner he/she believed to be in the best interests of the
institution, and (B) that the payment of such expenses will not materially
adversely affect the institution's or holding company's safety and soundness.
The Regulations allow the insured depository institution or depository
institution holding company to advance expenses only if the recipient undertakes
to reimburse the institution or holding company to the extent the above
standards for permissible indemnification are not satisfied.
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
See Exhibit Index attached hereto.
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 such
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 such 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 County of Nassau, State of New York, on this 27th day of
May, 2005.
FLUSHING FINANCIAL CORPORATION
By: /S/ JOHN R. BURAN
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John R. Buran
Executive Vice President and
Chief Operating 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 27th day of May, 2005.
SIGNATURE CAPACITY
* President and Chief Executive Officer
---------------------------------- and Director
Michael J. Hegarty (Principal 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
David W. Fry (Principal Financial and
Accounting Officer)
SIGNATURE CAPACITY
* Director
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James D. Bennett
---------------------------------- Director
Steven J. D'Iorio
* Director
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Louis C. Grassi
* Director
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John J. McCabe
* Director
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Vincent F. Nicolosi
* Director
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Donna M. O'Brien
* Director
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Franklin F. Regan, Jr.
* Director
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John E. Roe, Sr.
* Director
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Michael J. Russo
* By: /S/ JOHN R. BURAN
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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
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4.1 Certificate of Incorporation of the Filed as Exhibit 3.1 to Registration
Company Statement on Form S-1 (No. 33-96488)
4.2 Amendment to Certificate of Incorporation Filed as Exhibit 4.2 to Registration
Statement on Form S-8 (No. 333-89450) filed
on May 31, 2002
4.3 Certificate of Designations of Series A Filed as Exhibit 3.3 to Form 10-Q for the
Junior Participating Preferred Stock of quarter ended September 30, 2002
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 September Filed as an Exhibit to the Company's Report
17, 1996 between the Company and on Form 8-K filed September 30, 1996
EquiServe Trust Company N.A. (successor
to State Street Bank and Trust Company),
as Rights Agent
4.6 2005 Omnibus Incentive Plan Filed as Appendix A to the Company's Proxy
Statement for its 2005 Annual Meeting of
Stockholders, filed March 31, 2005
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Independent Registered Public Filed herewith
Accounting Firm
23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1
24.1 Powers of Attorney Filed herewith