As filed
with the Securities and Exchange Commission on January 27, 2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
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 incorporation or organization)
|
(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)
____________________
John R.
Buran
President
and Chief Executive Officer
Flushing
Financial Corporation
1979
Marcus Avenue, Suite E140
Lake
Success, New York 11042
(718)
961-5400
(Name,
address, including zip code, and telephone number, including area
code,
of agent
for service)
____________________
Copies
to:
Douglas
J. McClintock, Esq.
Walter G.
Van Dorn Jr., Esq.
Sonnenschein
Nath & Rosenthal LLP
Two World
Financial Center
New York,
New York 10281
(212)
768-6700
____________________
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the “Securities Act”) other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. T
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. £
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. £
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
|
Large
Accelerated Filer £
|
Accelerated
Filer T
|
||
|
Non-accelerated
Filer £
|
Smaller
reporting Company £
|
CALCULATION
OF REGISTRATION FEE
|
Title
of each Class of Securities to be Registered
|
Amount
to be Registered(1)(2)(3)
|
Proposed
Maximum Offering Price Per Unit(1)
|
Proposed
Maximum Aggregate Offering Price(1)(2)(3)
|
Amount
of Registration Fee
|
|
Fixed
Rate Cumulative Perpetual Preferred Stock, Series B, $0.01 par
value
|
70,000 shares
|
$1,000
(1)
|
$70,000,000.00
|
$2,751.00
|
|
Warrant
to Purchase Common Stock, $0.01 par value, and underlying shares of Common
Stock (2)
|
751,611
shares
|
$13.97(3)
|
$10,500,005.67
|
$412.65
|
|
$80,500,005.67
|
$3,163.65
|
|
(1)
|
Calculated in accordance with
Rule 457(a) and includes such additional number of shares of Fixed Rate
Cumulative Perpetual Preferred Stock, Series B, of a currently
indeterminable amount, as may from time to time become issuable by reason
of stock splits, stock dividends or similar
transactions.
|
|
(2)
|
In addition to the Fixed Rate
Cumulative Perpetual Preferred Stock, Series B, there are being registered
hereunder (a) a warrant for the purchase of 751,611 shares of common stock with an
initial per share exercise price of $13.97, (b) the 751,611 shares of common stock issuable
upon exercise of such warrant and (c) such additional number of shares of
common stock, of a currently indeterminable amount, as may from time to
time become issuable by reason of stock splits, stock dividends and
certain antidilution provisions set forth in such warrant, which shares of
common stock are registered hereunder pursuant to Rule
416.
|
|
(3)
|
Calculated
in accordance with Rule 457(i) with respect to the per share exercise
price of the warrant of $13.97.
|
The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or
until the Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
The
information in this prospectus is not complete and may be changed or
supplemented. The securities described in this prospectus cannot be sold until
the registration statement that we have filed to cover the securities has become
effective under the rules of the Securities and Exchange Commission. This
prospectus is not an offer to sell the securities, nor is it a solicitation of
an offer to buy the securities in any jurisdiction where an offer or sale
thereof is not permitted.
Subject
to Completion, dated January 27, 2009
PROSPECTUS
FLUSHING
FINANCIAL CORPORATION
FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
WARRANT
TO PURCHASE 751,611 SHARES OF COMMON STOCK
751,611
SHARES OF COMMON STOCK
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series B (“Series B Preferred Stock”), a warrant to
purchase 751,611 shares of our common
stock (the “Warrant”), and any shares of our common stock issuable from time to
time upon exercise of the warrant. In this prospectus, we refer to the shares of
Series B Preferred Stock, the Warrant and the shares of common stock issuable
upon exercise of the Warrant, collectively, as the securities. The Series B
Preferred Stock and the Warrant were originally issued by us pursuant to the
Letter Agreement dated December 19, 2008, and the related Securities Purchase
Agreement – Standard Terms (collectively, the “Purchase Agreement”), between us
and the United States Department of the Treasury (“Treasury”), which we refer to
as the initial selling securityholder, in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to Section 4(2) of the Securities Act.
The
initial selling securityholder and its successors, including transferees, which
we collectively refer to as the selling securityholders, may offer the
securities from time to time directly or through underwriters, broker-dealers or
agents and in one or more public or private transactions and at fixed prices,
prevailing market prices, at prices related to prevailing market prices or at
negotiated prices. If these securities are sold through underwriters,
broker-dealers or agents, the selling securityholders will be responsible for
underwriting discounts or commissions or agents’ commissions.
We will
not receive any proceeds from the sale of the securities by the selling
securityholders.
You
should read this prospectus, the information incorporated or deemed to be
incorporated by reference in this prospectus and any prospectus supplement
carefully before you invest.
Neither
the Series B Preferred Stock nor the Warrant is listed on an exchange. Unless
requested by the initial selling securityholder, we do not intend to list the
Series B Preferred Stock on any exchange. We do not intend to list the Warrant
on any exchange.
Our
common stock is traded on the NASDAQ Global Select Market under the symbol
“FFIC.” On January 26, 2009, the last reported sales price for our
common stock was $8.01 per share. You are urged to obtain current
market quotations of our common stock.
Investing
in any securities involves risks. See “Risk Factors” beginning on page 5 of this
prospectus.
Our
principal executive offices are located at 1979 Marcus Avenue, Suite E140, Lake
Success, New York 11042, and our telephone number is (718)
961-5400. Our internet address is
www.flushingsavings.com.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus or
any accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
These
securities are unsecured and are not savings accounts, deposits or other
obligations of any of our bank or non-bank subsidiaries, and are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other
governmental agency. These securities involve investment risks, including
possible loss of principal.
The date
of this prospectus is
[ ]
, 2009
TABLE OF CONTENTS
|
Page
|
|
|
1
|
|
|
1
|
|
|
1
|
|
|
2
|
|
|
3
|
|
|
4
|
|
|
5
|
|
|
6
|
|
|
6
|
|
|
6
|
|
|
11
|
|
|
12
|
|
|
12
|
|
|
14
|
|
|
16
|
|
|
17
|
|
|
17
|
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf registration process, the selling
securityholders may, from time to time, offer and sell, in one or more
offerings, the securities described in this prospectus.
You
should rely only on the information contained in this prospectus. We have not
authorized anyone to provide you with information different from that contained
in this prospectus. This prospectus is offering to sell, and is seeking offers
to buy, the securities only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus.
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the selling securityholders. The prospectus
supplement may add, update or change information in this prospectus. If the
information in this prospectus is inconsistent with a prospectus supplement, you
should rely on the information in that prospectus supplement. We urge
you to read this prospectus and, if applicable, any prospectus supplement
together with additional information described under the headings “Available
Information” and “Incorporation of Certain Documents by Reference.”
In this
prospectus, unless the context indicates otherwise, references to the “Company,”
“we,” “our” and “us” refer to the activities and the assets and liabilities of
Flushing Financial Corporation, including its subsidiaries, Flushing Savings
Bank, FSB, a federally chartered stock savings bank (the “Bank”), Flushing
Financial Capital Trust II, Flushing Financial Capital Trust III and Flushing
Financial Capital Trust IV, which are special purpose business trusts formed
during 2007 to issue capital securities, and the four subsidiaries of the Bank:
Flushing Commercial Bank, Flushing Preferred Funding Corporation, Flushing
Service Corporation, and FSB Properties Inc.
See “Our
Company” on page 4 of this prospectus.
We file
annual, quarterly and current reports, proxy statements and other information
required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
with the SEC. You may read and copy any of these filed documents at the SEC's
Public Reference Room at 100 F Street, N.E., Room 1580, Washington, DC, 20549.
Please call the SEC at 1-800-SEC-0330 for further information. Our SEC filings
are also available to the public from the SEC's website at www.sec.gov. You
may also inspect copies of these reports, proxy statements and other information
at the offices of the Nasdaq Stock Market, Inc., One Liberty Plaza, 165
Broadway, New York, NY 10006.
Our
website is www.flushingsavings.com. We
make available free of charge on our website, via a link to a third party
website, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K, proxy statements, registration statements, select
other filings and any amendments to such reports filed or furnished pursuant to
the Exchange Act as soon as reasonably practicable after such material is
electronically filed with, or furnished to, the SEC. Unless
specifically incorporated by reference into this prospectus, information
contained on our website is not, and should not be interpreted to be, part of
this prospectus.
This
prospectus is part of a Registration Statement and does not contain all of the
information included in the Registration Statement. Whenever a reference is made
in this prospectus or any prospectus supplement, if applicable, to any contract
or other document of ours, you should refer to the exhibits that are a part of
the Registration Statement for a copy of the referenced contract or document.
Statements contained in this prospectus concerning the provisions of any
documents are necessarily summaries of those documents, and each statement is
qualified in its entirety by reference to the copy of the document filed with
the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC
allows us to “incorporate by reference” into this prospectus information that we
file with the SEC in other documents. This means that we can disclose
important information to you by referring you to other documents filed
separately with the SEC. The information that we incorporate by
reference is considered to be part of this prospectus, and information that we
file later with the SEC will automatically update and supersede the information
contained in this prospectus.
This
prospectus incorporates by reference the documents that we have filed with the
SEC. These documents contain important information about us that is
not included in or delivered with this prospectus. The following
documents filed with the SEC pursuant to Section 13 of the Exchange Act (File
No. 001-33013) are incorporated by reference:
|
|
·
|
our
annual report on Form 10-K for the year ended December 31, 2007, including
those portions incorporated by reference therein of our definitive proxy
statement on Schedule 14A filed with the SEC on April 7,
2008;
|
|
|
·
|
our
quarterly reports on Form 10-Q for the quarters ended March 31, 2008, June
30, 2008 and September 30, 2008;
and
|
|
|
·
|
our
current reports on Form 8-K filed January 4, February 28, March 3 and 24,
May 21 and 27, June 3, August 20, November 19, December 5, December 22 and
December 23, 2008.
|
All
documents that we will file with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus and prior to the
termination of any offering of securities under this prospectus shall be deemed
to be incorporated by reference and to be a part of this prospectus from the
date such documents are filed, provided, however, that we are not incorporating
by reference any information furnished under Item 2.02 or Item 7.01 of any
current report on Form 8-K.
We will
provide to you, without charge, a copy of any or all documents incorporated by
reference into this prospectus except the exhibits to those documents (unless
they are specifically incorporated by reference in those
documents). You may request copies by writing or telephoning: David
Fry, Executive Vice President and Chief Financial Officer, Flushing Financial
Corporation, 1979 Marcus Avenue, Suite E140, Lake Success, New York 11042,
telephone number (718) 961-5400.
You
should rely only upon the information provided in this document, or incorporated
in this document by reference. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
document, including any information incorporated by reference, is accurate as of
any date other than the date indicated on the front cover or the date given in
the applicable document.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements contained in this prospectus constitute forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Exchange Act. We intend such forward-looking statements to be
covered by the safe harbor provisions for forward-looking statements contained
in the Private Securities Litigation Reform Act of 1995 and are including this
statement for purposes of invoking these safe harbor provisions. You
can identify these statements from our use of the words “plan,” “forecast,”
“estimate,” “project,” “believe,” “intend,” “anticipate,” “expect,” “target,”
“is likely,” “will,” “potential,” “may,” “should,” “could,” “predict,”
“continue” and similar expressions. These forward-looking statements
may include, among other things:
|
|
·
|
statements
and assumptions relating to financial
performance;
|
|
|
·
|
statements
relating to the anticipated effects on results of operations or financial
condition from recent or future developments or
events;
|
|
|
·
|
statements
relating to our business and growth strategies and our regulatory capital
levels; and
|
|
|
·
|
any
other statements, projections or assumptions that are not historical
facts.
|
We
qualify any forward-looking statements entirely by these and the following
cautionary factors.
Actual
future results may differ materially from our forward-looking statements, and we
qualify all forward-looking statements by various risks and uncertainties we
face, as well as the assumptions underlying the statements, including the
following, cautionary factors: potential deterioration or effects of general
economic conditions, particularly in sectors relating to real estate and/or
mortgage lending and small business lending; fluctuations in housing prices;
potential changes in direction, volatility and relative movement (basis risk) of
interest rates, which may affect consumer demand for our products and the
management and success of our interest rate risk management strategies; staffing
fluctuations in response to product demand or the implementation of corporate
strategies that affect our work force; the relative profitability of our lending
and deposit operations; the valuation and management of our portfolios,
including the use of external and internal modeling assumptions we embed in the
valuation of those portfolios and short-term swings in the valuation of such
portfolios; borrowers’ refinancing opportunities, which may affect the
prepayment assumptions used in our valuation estimates and which may affect loan
demand; unanticipated deterioration in the credit quality or collectability of
our loan and lease assets, including deterioration resulting from the effects of
natural disasters; unanticipated deterioration or changes in estimates of the
carrying value of our other assets, including securities; difficulties in
delivering products to the secondary market as planned; difficulties in
expanding our business and obtaining or retaining deposit or other funding
sources as needed, and other constraints resulting from regulatory actions;
competition from other financial service providers for experienced managers as
well as for customers; changes in variable compensation plans related to the
performance and valuation of lines of business where we tie compensation systems
to line-of-business performance; unanticipated lawsuits or outcomes in
litigation; legislative or regulatory changes, including changes in laws, rules
or regulations that affect tax, consumer or commercial lending, corporate
governance and disclosure requirements, and other laws, rules or regulations
affecting the rights and responsibilities our holding company, state-chartered
bank or federal savings bank subsidiaries; the availability of resources to
address changes in laws, rules or regulations or to respond to regulatory
actions; changes in applicable accounting policies or principles or their
application to our businesses or final audit adjustments, including additional
guidance and interpretation on accounting issues and details of the
implementation of new accounting methods.
In
addition, our past results of operations do not necessarily indicate our future
results. We discuss these and other uncertainties in the “Risk
Factors” section of this prospectus beginning on page 5 and in our annual report
on Form 10-K for the year ended December 31, 2007 and in our quarterly report on
Form 10-Q for the quarter ended September 30, 2008, as well as in any future
filings we may make that may be incorporated by reference herein. For
information on the documents we are incorporating by reference and how to obtain
a copy, please see “Where You Can Find More Information” on page 1 of this
prospectus. We undertake no obligation to update publicly any of
these statements in light of future events, except as required in subsequent
reports that we file with the SEC.
Flushing
Financial Corporation (the “Holding Company”) is a Delaware corporation
organized in May 1994 at the direction of the Bank. The Holding
Company’s principal executive offices are located at 1979 Marcus Avenue, Suite
E140, Lake Success, New York 11042, and its telephone number is (718)
961-5400.
The Bank
was organized in 1929 as a New York State chartered mutual savings bank. In
1994, the Bank converted to a federally chartered mutual savings bank and
changed its name from Flushing Savings Bank to Flushing Savings Bank,
FSB. The Bank converted from a federally chartered mutual savings
bank to a federally chartered stock savings bank on November 21, 1995, at which
time the Holding Company acquired all of the stock of the Bank. The
primary business of the Holding Company at this time is the operation of its
wholly owned subsidiary, the Bank. The Bank owns four subsidiaries: Flushing
Commercial Bank, Flushing Preferred Funding Corporation, Flushing Service
Corporation, and FSB Properties Inc. In November, 2006, the Bank launched an
internet branch, iGObanking.com®. The activities of the Holding
Company are primarily funded by dividends, if any, received from the
Bank. Flushing Financial Corporation’s common stock is traded on the
NASDAQ Global Select Market under the symbol “FFIC.”
The
Holding Company also owns Flushing Financial Capital Trust II, Flushing
Financial Capital Trust III, and Flushing Financial Capital Trust IV (the
“Trusts”), special purpose business trusts formed during 2007 to issue capital
securities. The Trusts used the proceeds from the issuance of these
capital securities, and the proceeds from the issuance of their common stock, to
purchase junior subordinated debentures from the Holding Company. In
accordance with the requirements of Financial Accounting Standards Board
(“FASB”) Interpretation No. 46R, we do not include the Trusts in the
consolidated financial statements of the Holding Company. The Holding
Company previously owned Flushing Financial Capital Trust I (the “Trust”), which
was a special purpose business trust formed in 2002 similar to the Trusts
discussed above. The Trust called its outstanding capital securities
during July 2007, and was then liquidated. Prior to 2004, the Trust
was included in the consolidated financial statements of the Holding
Company. Effective January 1, 2004, in accordance with the
requirements of FASB Interpretation No. 46R, the Trust was
deconsolidated.
Unless
otherwise disclosed, the information presented in this prospectus reflects the
financial condition and results of operations of the Holding Company, the Bank
and the Bank’s subsidiaries on a consolidated basis. At September 30,
2008, the Company had total assets of $3.6 billion, deposits of $2.2 billion and
stockholders’ equity of $232.2 million.
The
Bank’s principal business is attracting retail deposits from the general public
and investing those deposits together with funds generated from ongoing
operations and borrowings, primarily in (1) originations and purchases of
one-to-four family (focusing on mixed-use properties – properties that contain
both residential dwelling units and commercial units), multi-family residential
and commercial real estate mortgage loans; (2) construction loans, primarily for
multi-family residential properties; (3) Small Business Administration loans and
other small business loans; (4) mortgage loan surrogates such as mortgage-backed
securities; and (5) U.S. government securities, corporate fixed-income
securities and other marketable securities. The Bank also originates
certain other consumer loans. The Bank’s revenues are derived
principally from interest on its mortgage and other loans and mortgage-backed
securities portfolio, and interest and dividends on other investments in its
securities portfolio. The Bank’s primary sources of funds are deposits, Federal
Home Loan Bank of New York borrowings, repurchase agreements, principal and
interest payments on loans, mortgage-backed and other securities, proceeds from
sales of securities and, to a lesser extent, proceeds from sales of loans. As a
federal savings bank, the Bank’s primary regulator is the Office of Thrift
Supervision (“OTS”). The Bank’s deposits are insured to the maximum
allowable amount by the Federal Deposit Insurance
Corporation. Additionally, the Bank is a member of the Federal Home
Loan Bank system.
In
addition to operating the Bank, the Holding Company invests primarily in U.S.
government securities, mortgage-backed securities, and corporate
securities. The Holding Company also holds a note evidencing a loan
that it made to an employee benefit trust established by the Holding Company for
the purpose of holding shares for allocation or distribution under certain
employee benefit plans of the Holding Company and the Bank (the “Employee
Benefit Trust”). The funds provided by this loan enabled the Employee
Benefit Trust to acquire 2,328,750 shares, or 8%, of the common stock issued in
our initial public offering.
Before
you invest in our securities, in addition to the risk factor set forth below and
other information, documents or reports included or incorporated by reference in
this prospectus and, if applicable, any prospectus supplement or other offering
materials, you should carefully consider the risk factors in the section
entitled “Risk Factors” in any prospectus supplement, as well as our most recent
Annual Report on Form 10-K, and in our Quarterly Reports on Form 10-Q filed
subsequent to the Annual Report on Form 10-K, which are incorporated by
reference into this prospectus and any prospectus supplement in their entirety,
as the same may be amended, supplemented or superseded from time to time by
other reports we file with the SEC in the future. Each of the risks described in
these sections and documents could materially and adversely affect our business,
financial condition, results of operations and prospects, and could result in a
partial or complete loss of your investment.
Because
of our participation in the Treasury’s Capital Purchase Program, we are subject
to several restrictions including restrictions on our ability to declare or pay
dividends and repurchase our shares as well as restrictions on our executive
compensation.
On
December 19, 2008, pursuant to the Purchase Agreement, the Company issued to the
Treasury for aggregate consideration of $70,000,000 (i) 70,000 shares of the
Series B Preferred Stock, par value $0.01 per share and liquidation preference
$1,000 per share, and (ii) the Warrant to purchase up to 751,611 shares of the
Company’s common stock, par value $0.01 per share, at an initial price of $13.97
per share. Pursuant to the terms of the Purchase Agreement, our
ability to declare or pay dividends on any of our shares is limited.
Specifically, we are unable to declare dividend payments on common, junior
preferred or pari passu
preferred shares if we are in arrears on the dividends on the Series B Preferred
Stock. Further, we are not permitted to increase dividends on our common stock
above the amount of the last quarterly cash dividend per share declared prior to
October 14, 2008 without the Treasury’s approval until the third anniversary of
the investment unless all of the Series B Preferred Stock has been redeemed or
transferred. In addition, our ability to repurchase our shares is
restricted. Treasury consent generally is required for us to make any
stock repurchase until the third anniversary of the investment by the Treasury
unless all of the Series B Preferred Stock has been redeemed or transferred.
Further, common, junior preferred or pari passu preferred shares
may not be repurchased if we are in arrears on the Series B Preferred Stock
dividends.
In
addition, pursuant to the terms of the Purchase Agreement, we adopted the
Treasury’s standards for executive compensation and corporate governance for the
period during which the Treasury holds the equity issued pursuant to the
Purchase Agreement, including the common stock which may be issued pursuant to
the Warrant. These standards generally apply to our Chief Executive
Officer, Chief Financial Officer and the three next most highly compensated
executive officers. The standards include (1) ensuring that incentive
compensation for senior executives does not encourage unnecessary and excessive
risks that threaten the value of the financial institution; (2) required
clawback of any bonus or incentive compensation paid to a senior executive based
on statements of earnings, gains or other criteria that are later proven to be
materially inaccurate; (3) prohibition on making golden parachute payments to
senior executives; and (4) agreement not to deduct for tax purposes executive
compensation in excess of $500,000 for each senior executive. In
particular, the change to the deductibility limit on executive compensation will
likely increase the overall cost of our compensation programs in future
periods. Since the Warrant has a ten year term, we could potentially
be subject to the executive compensation and corporate governance restrictions
for a ten year time period.
We will
not receive any proceeds from any sale of the securities by the selling
securityholders.
The
following table sets forth our consolidated ratios of earnings to fixed charges
for the periods presented (dollars in thousands):
|
Nine
Months Ended September 30,
|
Fiscal
Year Ended December 31,
|
|||||||||||||||||||||||||||
|
2008
|
2007
|
2007
|
2006
|
2005
|
2004
|
2003
|
||||||||||||||||||||||
|
Including
Interest Paid on Deposits:
|
||||||||||||||||||||||||||||
|
Earnings
before income taxes
|
$ | 24,233 | $ | 24,987 | $ | 31,115 | $ | 34,757 | $ | 38,593 | $ | 37,045 | $ | 35,222 | ||||||||||||||
|
Combined
fixed charges:
|
||||||||||||||||||||||||||||
|
Interest
expense on deposits
|
56,950 | 56,851 | 78,017 | 56,857 | 34,657 | 28,972 | 27,521 | |||||||||||||||||||||
|
Interest
expense on borrowed funds
|
39,105 | 31,596 | 44,607 | 33,823 | 29,572 | 23,261 | 24,655 | |||||||||||||||||||||
|
Total
fixed charges
|
96,055 | 88,447 | 122,624 | 90,680 | 64,229 | 52,233 | 52,176 | |||||||||||||||||||||
|
Earnings
before income taxes and fixed charges
|
$ | 120,288 | $ | 113,434 | $ | 153,739 | $ | 125,437 | $ | 102,822 | $ | 89,278 | $ | 87,398 | ||||||||||||||
|
Ratio
of earnings to fixed charges
|
1.25 | 1.28 | 1.25 | 1.38 | 1.60 | 1.71 | 1.68 | |||||||||||||||||||||
|
Excluding
Interest Paid on Deposits:
|
||||||||||||||||||||||||||||
|
Earnings
before income taxes
|
$ | 24,233 | $ | 24,987 | $ | 31,115 | $ | 34,757 | $ | 38,593 | $ | 37,045 | $ | 35,222 | ||||||||||||||
|
Combined
fixed charges:
|
||||||||||||||||||||||||||||
|
Interest
expense on borrowed funds
|
39,105 | 31,596 | 44,607 | 33,823 | 29,572 | 23,261 | 24,655 | |||||||||||||||||||||
|
Total
fixed charges
|
39,105 | 31,596 | 44,607 | 33,823 | 29,572 | 23,261 | 24,655 | |||||||||||||||||||||
|
Earnings
before income taxes and fixed charges
|
$ | 63,338 | $ | 56,583 | $ | 75,722 | $ | 68,580 | $ | 68,165 | $ | 60,306 | $ | 59,877 | ||||||||||||||
|
Ratio
of earnings to fixed charges
|
1.62 | 1.79 | 1.70 | 2.03 | 2.31 | 2.59 | 2.43 | |||||||||||||||||||||
DESCRIPTION OF SERIES B PREFERRED STOCK
The
following is a brief description of the terms of the Series B Preferred Stock
that may be resold by the selling securityholders. This summary does
not purport to be complete in all respects. This description is subject to is
and qualified in its entirety by reference to the Certificate of Designations
with respect to the Series B Preferred Stock, copies of which have been filed
with the SEC as Exhibit 3.1 to the Company’s Form 8-K filed on December 23, 2008
and are also available upon request from us.
General. Our
charter, as amended, provides that we may issue up to 45,000,000 shares of
capital stock, consisting of 40,000,000 shares of common stock, par value $0.01
per share, and 5,000,000 shares of preferred stock, par value $0.01 per
share. Of such number of shares of preferred stock authorized, 70,000
shares have been designated as Series B Preferred Stock, all of which shares of
Series B Preferred Stock were issued to the initial selling security holder in a
transaction exempt from the registration requirements of the Securities
Act. No other shares of preferred stock are issued and outstanding as
of the date hereof.
Our Board
of Directors has the authority, without further action by the stockholders, to
issue shares of preferred stock in one or more series and to fix the number of
shares, dividend rights, conversion rights, voting rights, redemption rights,
liquidation preferences, sinking funds, and any other rights, preferences,
privileges and restrictions applicable to each such series of preferred stock,
subject to limitations set forth in our Certificate of Incorporation, as
amended.
Dividends Payable
On Shares of Series B Preferred
Dividends Payable on Series B
Preferred Stock. Holders of Series B Preferred Stock are
entitled to receive if, as and when declared by our board of directors, out of
legally available funds, cumulative cash dividends at a rate per annum of 5% per
share on a liquidation preference of $1,000 per share of Series B Preferred
Stock with respect to each dividend period from December 19, 2008 to, but
excluding, February 15, 2014. From and after February 15, 2014,
holders of Series B Preferred Stock are entitled to receive cumulative cash
dividends at a rate per annum of 9% per share on a liquidation preference of
$1,000 per share of Series B Preferred Stock with respect to each dividend
period thereafter.
Dividends
are payable quarterly in arrears on each February 15, May 15, August 15 and
November 15 (each a “dividend payment date”), starting with February 15, 2009.
If any dividend payment date is not a business day, then the next business day
will be the applicable dividend payment date, and no additional dividends will
accrue as a result of the applicable postponement of the dividend payment date.
Dividends payable during any dividend period are computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable with respect
to Series B Preferred Stock are payable to holders of record of Series B
Preferred Stock on the date that is 15 calendar days immediately preceding the
applicable dividend payment date or such other record date as the board of
directors or any duly authorized committee of the board determines, so long as
such record date is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to Series B
Preferred Stock, we are required to provide written notice to the holders of
Series B Preferred Stock prior to the applicable dividend payment
date.
We are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain adequate capital above
regulatory minimums. The OTS is authorized to determine, under certain
circumstances relating to the financial condition of a savings and loan holding
company, such as the Company, that the payment of dividends would be an unsafe
or unsound practice and to prohibit payment thereof.
Priority of
Dividends. With respect to the payment of dividends and the
amounts to be paid upon liquidation, Series B Preferred Stock will
rank:
|
|
·
|
senior
to our common stock and all other equity securities designated as ranking
junior to Series B Preferred Stock;
and
|
|
|
·
|
at
least equally with all other equity securities designated as ranking on a
parity with Series B Preferred Stock (“parity stock”), with respect to the
payment of dividends and distribution of assets upon our liquidation,
dissolution or winding-up of the
Company.
|
So long
as any shares of Series B Preferred Stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on the Company’s common stock or other junior stock, other than
a dividend payable solely in common stock.
In
addition, we may not purchase, redeem or otherwise acquire for consideration any
shares of our common stock or other junior stock unless we have paid in full all
accrued dividends on Series B Preferred Stock for all prior dividend periods,
other than:
|
|
·
|
purchases,
redemptions or other acquisitions of our common stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business;
|
|
|
·
|
purchases
or other acquisitions by broker-dealer subsidiaries of the Company solely
for the purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
|
|
|
·
|
purchases
or other acquisitions by broker-dealer subsidiaries of the Company for
resale pursuant to an offering by us of our stock that is underwritten by
the related broker-dealer
subsidiary;
|
|
|
·
|
any
dividends or distributions of rights or junior stock in connection with
any stockholders’ rights plan or repurchases of rights pursuant to any
stockholders’ rights plan;
|
|
|
·
|
acquisition
by us of record ownership of junior stock or parity stock for the
beneficial ownership of any other person (other than us), including as
trustees or custodians; and
|
|
|
·
|
the
exchange or conversion of (i) junior stock for or into other junior stock
or (ii) parity stock for or into other parity stock or junior stock, but
only to the extent that (x) such acquisition is required pursuant to
binding contractual agreements entered into before December 19, 2008 or
(y) any subsequent agreement for the accelerated exercise, settlement or
exchange thereof for common stock.
|
If we
repurchase shares of Series B Preferred Stock from a holder other than the
Treasury, we must offer to repurchase a ratable portion of Series B Preferred
Stock then held by the Treasury.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on Series B Preferred Stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefor falling within the dividend period and related
to the dividend payment date for Series B Preferred Stock), with respect to
Series B Preferred Stock and any other parity stock shall be declared ratably
among the holders of any such shares who have the right to receive dividends, in
proportion to the respective amounts of the undeclared and unpaid dividends
relating to the dividend period.
Subject
to the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors may be declared and paid on our common
stock and any other stock ranking equally with or junior to the Series B
Preferred Stock from time to time out of any funds legally available for such
payment, and Series B Preferred Stock shall not be entitled to participate in
any such dividend.
Redemption. The
Series B Preferred Stock may not be redeemed prior to December 19, 2011 unless
we have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) equal to $17,500,000 which equals 25% of the
aggregate liquidation amount of the Series B Preferred Stock on the date of
issuance. In such a case, we may redeem the Series B Preferred Stock, subject to
the approval of the OTS, in whole or in part, upon notice as described below, up
to a maximum amount equal to the aggregate net cash proceeds received by the
Company from such qualified equity offerings. A “qualified equity offering” is a
sale and issuance for cash by the Company, to persons other than the Company or
its subsidiaries after December 19, 2008, of shares of perpetual preferred
stock, common stock or a combination thereof, that in each case qualify as tier
1 capital of the Company at the time of issuance under the applicable risk-based
capital guidelines of the OTS. Qualified equity offerings do not include
issuances made in connection with acquisitions, issuances of trust preferred
securities and issuances of common stock and/or perpetual preferred stock made
pursuant to agreements or arrangements entered into, or pursuant to financing
plans that were publicly announced, on or prior to October 13,
2008.
After
December 19, 2011, the Series B Preferred Stock may be redeemed at any time,
subject to the approval of the OTS, in whole or in part, subject to notice as
described below.
In any
redemption, the redemption price shall be an amount equal to the per share
liquidation amount plus accrued and unpaid dividends to but excluding the date
of redemption.
The
Series B Preferred Stock will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of shares of Series B Preferred
Stock have no right to require the redemption or repurchase of the Series B
Preferred Stock.
In case
of any redemption of less than all of the shares of Series B Preferred Stock,
the shares to be redeemed will be selected either pro rata or in such other
manner as our board of directors may determine to be fair and
equitable.
We will
mail notice of any redemption of Series B Preferred Stock by first class mail,
postage prepaid, addressed to the holders of record of the shares of Series B
Preferred Stock to be redeemed at their respective last addresses appearing on
our books. This mailing will be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed or otherwise given as
described in this paragraph will be conclusively presumed to have been duly
given, whether or not the holder receives the notice, and failure duly to give
the notice by mail or otherwise, or any defect in the notice or in the mailing
or provision of the notice, to any holder of Series B Preferred Stock designated
for redemption will not affect the redemption of any other Series B Preferred
Stock. Each notice of redemption will set forth the applicable redemption date,
the redemption price, the place where shares of Series B Preferred Stock are to
be redeemed, and the number of shares of Series B Preferred Stock to be redeemed
(and, if less than all shares of Series B Preferred Stock held by the applicable
holder, the number of shares to be redeemed from the holder).
Shares of
Series B Preferred Stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
Liquidation
Rights. In the event that the Company voluntarily or
involuntarily liquidates, dissolves or winds up its affairs, holders of Series B
Preferred Stock will be entitled to receive an amount per share, referred to as
the total liquidation amount, equal to the fixed liquidation preference of
$1,000 per share, plus any accrued and unpaid dividends, whether or not
declared, to the date of payment. Holders of Series B Preferred Stock will be
entitled to receive the total liquidation amount out of our assets that are
available for distribution to stockholders, after payment or provision for
payment of our debts and other liabilities but before any distribution of assets
is made to holders of our common stock or any other shares ranking, as to that
distribution, junior to the Series B Preferred Stock.
If our
assets are not sufficient to pay the total liquidation amount in full to all
holders of Series B Preferred Stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of Series B Preferred Stock and
other shares of parity stock will be paid pro rata in accordance with
the respective total liquidation amount for those holders. If the total
liquidation amount per share of Series B Preferred Stock has been paid in full
to all holders of Series B Preferred Stock and other shares of parity stock, the
holders of our common stock or any other shares ranking, as to such
distribution, junior to Series B Preferred Stock will be entitled to receive all
of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, conveyance, exchange or
transfer of all or substantially all of our property and assets, nor the
consolidation or merger by the Company with or into, any other corporation or by
another corporation with or into the Company, will constitute a liquidation,
dissolution or winding-up of our affairs.
Voting
Rights. Except as indicated below or otherwise required by
law, the holders of Series B Preferred Stock will not have any voting
rights.
Election of Two Directors upon
Non-Payment of Dividends. If the dividends on the Series B Preferred
Stock have not been paid for an aggregate of six quarterly dividend periods or
more (whether or not consecutive), the authorized number of directors then
constituting the Company’s board of directors will be automatically increased by
two. Holders of Series B Preferred Stock, together with the holders of any
outstanding parity stock with like voting rights (the “Voting Parity Stock”),
voting as a single class, will be entitled to elect the two additional members
of the Company’s board of directors (the “Preferred Stock Directors”), at the
next annual meeting (or at a special meeting called for the purpose of electing
the Preferred Stock Directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends for all past
dividend periods have been paid in full. The election of any Preferred Stock
Director is subject to the qualification that the election would not cause us to
violate the corporate governance requirement of the NASDAQ Global Select Market
(or any other exchange on which our securities may be listed) that listed
companies must have a majority of independent directors.
Upon the
termination of the right of the holders of Series B Preferred Stock and Voting
Parity Stock to vote for Preferred Stock Directors, as described above, the
Preferred Stock Directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of the Company will be reduced by the number of Preferred Stock
Directors that the holders of Series B Preferred Stock and Voting Parity Stock
had been entitled to elect. The holders of a majority of shares of Series B
Preferred Stock and Voting Parity Stock, voting as a class, may remove any
Preferred Stock Director, with or without cause, and the holders of a majority
of the shares of Series B Preferred Stock and Voting Parity Stock, voting as a
class, may fill any vacancy created by the removal of a Preferred Stock
Director. If the office of a Preferred Stock Director becomes vacant for any
other reason, the remaining Preferred Stock Director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other Voting Rights. So long
as any shares of Series B Preferred Stock are outstanding, in addition to any
other vote or consent of stockholders required by law or by our restated
certificate of incorporation, the vote or consent of the holders of at least
66-2/3% of the shares of Series B Preferred Stock at the time outstanding,
voting separately as a single class, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
|
|
·
|
any
amendment or alternation of our Certificate of Incorporation, as amended,
to authorize or create or increase the authorized amount of, or any
issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of capital
stock ranking senior to the Series B Preferred Stock with respect to
payment of dividends and/or distribution of assets on our liquidation,
dissolution or winding up;
|
|
|
·
|
any
amendment, alternation or repeal of any provision of the Certificate of
Amendment to our Certificate of Incorporation with respect to the Series B
Preferred Stock so as to adversely affect the rights, preferences,
privileges or voting powers of Series B Preferred Stock;
or
|
|
|
·
|
any
consummation of a binding share exchange or reclassification involving the
Series B Preferred Stock or a merger or consolidation of the Company with
another entity, unless the shares of Series B Preferred Stock remain
outstanding following any such transaction or, if the Company is not the
surviving entity, are converted into or exchanged for preference
securities and such remaining outstanding shares of Series B Preferred
Stock or preference securities have rights, references, privileges and
voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the Series B Preferred Stock,
taken as a whole.
|
Holders
of the Series B Preferred Stock are entitled to one vote for each share on any
matter on which such holders are entitled to vote.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of Series B
Preferred Stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders of
Series B Preferred Stock to effect the redemption.
DESCRIPTION OF THE
WARRANT
The
following is a brief description of the terms of the Warrant that may
be resold by the selling securityholders. This summary does not
purport to be complete in all respects. This description is subject to is and
qualified in its entirety by reference to the Warrant, copies of which have been
filed with the SEC as Exhibit 4.2 to the Company’s Form 8-K filed on December
23, 2008 and are also available upon request from us.
Shares of Common Stock Subject to the
Warrant. The Warrant is initially exercisable for 751,611
shares of our common stock. If we complete one or more qualified equity
offerings on or prior to December 31, 2009 that result in our receipt of
aggregate gross proceeds of not less than $70,000,000, which is equal to 100% of
the aggregate liquidation preference of the Series B Preferred Stock, the number
of shares of common stock underlying the warrant then held by the Treasury will
be reduced by 50% to 375,805.5 shares. The number of shares subject to the
Warrant are subject to the further adjustments described below under the heading
“—Adjustments to the Warrant.”
Exercise of the
Warrant. The initial exercise price applicable to the Warrant
is $13.97 per share of common stock for which the Warrant may be exercised. The
Warrant may be exercised at any time on or before December 19, 2018 by surrender
of the Warrant and a completed notice of exercise attached as an annex to the
Warrant and the payment of the exercise price for the shares of common stock for
which the Warrant is being exercised. The exercise price may be paid either by
the withholding by the Company of such number of shares of common stock issuable
upon exercise of the Warrant equal to the value of the aggregate exercise price
of the Warrant determined by reference to the market price of our common stock
on the trading day on which the Warrant is exercised or, if agreed to by us and
the warrantholder, by the payment of cash equal to the aggregate exercise price.
The exercise price applicable to the Warrant is subject to the further
adjustments described below under the heading “—Adjustments to the
Warrant.”
Upon
exercise of the Warrant, certificates for the shares of common stock issuable
upon exercise will be issued to the warrantholder. We will not issue fractional
shares upon any exercise of the Warrant. Instead, the warrantholder will be
entitled to a cash payment equal to the market price of our common stock on the
last day preceding the exercise of the Warrant (less the pro-rated exercise
price of the Warrant) for any fractional shares that would have otherwise been
issuable upon exercise of the Warrant. We will at all times reserve the
aggregate number of shares of our common stock for which the Warrant may be
exercised.
Rights as a
Stockholder. The warrantholder shall have no rights or
privileges of the holders of our common stock, including any voting rights,
until (and then only to the extent) the Warrant has been exercised.
Transferability. The
Treasury may not transfer a portion of the Warrant with respect to more than
375,805.5 shares of common stock until the earlier of the date on which the
Company has received aggregate gross proceeds from a qualified equity offering
of at least $70,000,000 and December 31, 2009. The Warrant, and all rights under
the Warrant, are otherwise transferable.
Adjustments
to the Warrant.
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
shares for which the Warrant may be exercised and the exercise price applicable
to the Warrant will be proportionately adjusted in the event we pay dividends or
make distributions of our common stock, subdivide, combine or reclassify
outstanding shares of our common stock.
Anti-dilution Adjustment.
Until the earlier of December 19, 2011 and the date the Treasury no longer holds
the Warrant (and other than in certain permitted transactions described below),
if we issue any shares of common stock (or securities convertible or exercisable
into common stock) for less than 90% of the market price of the common stock on
the last trading day prior to pricing such shares, then the number of shares of
common stock into which the Warrant is exercisable and the exercise price will
be adjusted. Permitted transactions include issuances:
|
|
·
|
as
consideration for or to fund the acquisition of businesses and/or related
assets;
|
|
|
·
|
in
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our board of directors;
|
|
|
·
|
in
connection with public or broadly marketed offerings and sales of common
stock or convertible securities for cash conducted by us or our affiliates
pursuant to registration under the Securities Act, or Rule 144A thereunder
on a basis consistent with capital-raising transactions by comparable
financial institutions (but do not include other private transactions);
and
|
|
|
·
|
in
connection with the exercise of preemptive rights on terms existing as of
December 19, 2008.
|
Other
Distributions. If we declare any dividends or distributions
other than our historical, ordinary cash dividends, the exercise price of the
Warrant will be adjusted to reflect such distribution.
Certain
Repurchases. If we affect a pro rata repurchase of common
stock both the number of shares issuable upon exercise of the Warrant and the
exercise price will be adjusted.
Business
Combinations. In the event of a merger, consolidation or
similar transaction involving the Company and requiring stockholder approval,
the warrantholder’s right to receive shares of our common stock upon exercise of
the warrant shall be converted into the right to exercise the Warrant for the
consideration that would have been payable to the warrantholder with respect to
the shares of common stock for which the Warrant may be exercised, as if the
Warrant had been exercised prior to such merger, consolidation or similar
transaction.
DESCRIPTION OF OUR COMMON STOCK
The
following is a description of our common stock and certain provisions of our
certificate of incorporation, bylaws and certain provisions of applicable law.
The following is only a summary and is qualified by applicable law and by the
provisions of our certificate of incorporation and bylaws, copies of which are
available as set forth under “Incorporation of Certain Documents by
Reference.”
General. Under our
Certificate of Incorporation, as amended, we have authority to issue up to
40,000,000 shares of common stock, par value $0.01 per share, of which
21,625,709 shares were outstanding as of January 20, 2009.
Voting Rights. Each
stockholder is entitled to one vote for each share of common stock held on all
matters submitted to a vote of stockholders. There is no cumulative
voting for election of directors. Accordingly, the holders of a
majority of the shares voted can elect all of the nominees for
director. Except as otherwise provided by law, holders of shares of
our common stock vote together as a single class.
Dividend Rights. Subject to the
Delaware General Corporation Law (“DGCL”) and the rights of holders of any
outstanding preferred stock, holders of our common stock will be entitled to
share dividends equally, share for share.
Liquidation and
Dissolution. In the event of the
liquidation, dissolution and winding up of the Company, the holders of our
common stock are entitled to receive ratably all of the assets of the Company
available for distribution after satisfaction of all liabilities of the Company,
subject to the rights of the holders of any shares of the Company’s preferred
stock that may be issued from time to time.
Other
Rights. Holders of shares of our common stock have no
preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the common
stock. All shares of common stock will, when issued, be fully paid
and non-assessable.
MATERIAL PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND BYLAWS
The
following discussion is a general summary of the material provisions of Flushing
Financial Corporation’s certificate of incorporation and bylaws and certain
other regulatory provisions that may be deemed to have an “anti-takeover”
effect, thereby possibly discouraging a third party from seeking control of
Flushing Financial Corporation. The following description of certain of these
provisions is necessarily general and, with respect to provisions contained in
Flushing Financial Corporation’s certificate of incorporation and bylaws,
reference should be made in each case to the document in question.
Flushing
Financial Corporation’s certificate of incorporation and bylaws contain a number
of provisions relating to corporate governance and rights of stockholders, which
might discourage future takeover attempts. As a result, stockholders who might
desire to participate in such transactions may not have an opportunity to do so.
In addition, these provisions will also render the removal of the board of
directors or management of Flushing Financial Corporation more
difficult.
Directors.
The board of directors is divided into three classes. The members of each class
will be elected for a term of three years and only one class of directors will
be elected annually. Thus, it would take at least two annual elections to
replace a majority of Flushing Financial Corporation’s board of directors.
Further, the bylaws impose notice and information requirements in connection
with the nomination by stockholders of candidates for election to the board of
directors or the proposal by stockholders of business to be acted upon at an
annual or special meeting of stockholders.
Restrictions on
Call of Special Meetings. The certificate of incorporation and bylaws
provide that special meetings of stockholders can be called only by the board of
directors pursuant to a resolution adopted by a majority of the total number of
authorized directorships. Stockholders are not authorized to call a special
meeting of stockholders.
Restrictions on
Removing Directors from Office. The certificate of incorporation provides
that directors may be removed only for cause, and only by the affirmative vote
of the holders of at least 80% of the voting power of all of Flushing Financial
Corporation’s then outstanding common stock entitled to vote.
Authorized but
Unissued Shares. Flushing Financial has authorized but unissued shares of
common and preferred stock. The certificate of incorporation
authorizes 5,000,000 shares of serial preferred stock. Flushing Financial
Corporation is authorized to issue preferred stock from time to time in one or
more series subject to applicable provisions of law, and the board of directors
is authorized to fix the designation, powers, preferences, and rights of the
shares of each series, and any qualifications, limitations or restrictions on
such shares. In the event of a proposed merger, tender offer or other attempt to
gain control of Flushing Financial Corporation that the board of directors does
not approve, it might be possible for the board of directors to authorize the
issuance of a series of preferred stock with rights and preferences that would
impede the completion of the transaction. An effect of the possible issuance of
preferred stock, therefore, may be to deter a future attempt to gain control of
Flushing Financial Corporation. The board of directors has no present plan to
issue any preferred stock in addition to the preferred stock issued to the
Treasury, as described above.
Amendments to
Certificate of Incorporation. Approval by (i) at least 80% of the
outstanding voting stock and (ii) at least two-thirds of the outstanding voting
stock not beneficially owned by an interested stockholder is required to amend
the following provisions:
|
|
·
|
the
ability of the stockholders to adopt, alter, amend or repeal the
bylaws;
|
|
|
·
|
the
inability of the stockholders to take any action by consent in
writing;
|
|
|
·
|
The
requirement that the affirmative vote of least 80% of the outstanding
shares of voting stock and two-thirds of the outstanding shares of voting
stock not beneficially owned by an interested stockholder is required to
consummate certain transactions with an interested stockholder or any
affiliate or associate of an interested
stockholder;
|
|
|
·
|
The
ability of the board of directors to evaluate a variety of factors in
evaluating offers to purchase or otherwise acquire Flushing
Financial;
|
|
|
·
|
The
division of the board of directors into three staggered
classes;
|
|
|
·
|
The
ability of the board of directors to fill vacancies on the
board;
|
|
|
·
|
The
inability to deviate from the manner prescribed in the bylaws by which
stockholders nominate directors and bring other business before meetings
of stockholders;
|
|
|
·
|
The
requirement that at least 80% of stockholders must vote to remove
directors, and can only remove directors for cause;
and
|
|
|
·
|
The
ability of the stockholders to alter, amend or adopt certain provisions of
the certificate of incorporation.
|
PLAN OF DISTRIBUTION
We are
registering the securities covered by this prospectus for the selling
securityholders.
We will
pay the costs and fees of registering the securities covered by this prospectus
and other expenses related to the registration of the securities to the extent
required by the Purchase Agreement. However, the Company will not pay any
underwriting discounts or commissions or other amounts payable to underwriters,
dealers or agents, or any transfer taxes or other expenses associated with the
sale of the securities, on behalf of the selling securityholders. Pursuant to
the Purchase Agreement, the Company has agreed to provide certain
indemnification to the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act, in connection with this
offering.
The
selling securityholders will act independently of the Company in making
decisions with respect to the timing, manner and size of each sale of the
securities.
The
securities being offered hereby may be sold from time to time, by the selling
securityholders by one or more of the following methods:
|
|
·
|
to
or through underwriting syndicates represented by managing
underwriters;
|
|
|
·
|
through
one or more underwriters without a syndicate for them to offer and sell to
the public;
|
|
|
·
|
through
broker-dealers or agents; and
|
|
|
·
|
to
investors directly in negotiated sales or in competitive bid
transactions.
|
If the
selling securityholders use underwriters in the sale of some or all of the
securities covered by this prospectus, the underwriters will acquire the
securities for their own account. The obligations of the underwriters
to purchase the securities will be subject to certain
conditions. Unless indicated otherwise, the underwriters will be
obligated to purchase all the securities of the series offered if any of the
securities are purchased.
Unless
otherwise indicated, when securities are sold through an agent, the designated
agent will agree, for the period of its appointment as agent, to use its best
efforts to sell the securities for the account of the selling securityholders
and will receive commissions from the selling securityholders.
Broker-dealers,
agents or underwriters may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders and/or the
purchasers of securities for whom such broker-dealers, agents or underwriters
may act as agents or to whom they sell as principal, or both (this compensation
to a particular broker-dealer might be in excess of customary
commissions).
The
selling securityholders may also sell offered securities directly. In this case,
no underwriters or agents would be involved.
The
securities may be sold from time to time in one or more
transactions:
|
|
·
|
at
fixed prices, which may be changed;
|
|
|
·
|
at
market prices prevailing at the time of the
sale;
|
|
|
·
|
at
varying prices determined at the time of sale;
or
|
|
|
·
|
at
negotiated prices.
|
These
sales may be affected in transactions, which may involve crosses or block
transactions:
|
|
·
|
on
any national securities exchange or quotation service on which the
preferred stock or the common stock may be listed or quoted at the time of
sale, including, as of the date of this prospectus, the NASDAQ Global
Select Market in the case of the common
stock;
|
|
|
·
|
in
the over-the-counter market;
|
|
|
·
|
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
|
|
|
·
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise.
|
Any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 or Rule 144A promulgated under the Securities Act may also be sold under
Rule 144 or Rule 144A in certain instances, rather than pursuant to this
prospectus. In addition to selling the securities under this
prospectus, the selling securityholders may transfer the securities in other
ways not involving market makers or established trading markets, including
directly by gift, distribution, or other transfer. The selling securityholders
may also transfer the shares by other means not described in this
prospectus. Moreover, the selling securityholders may decide not to
sell any securities offered hereby.
In
addition, in connection with the sale of the securities or otherwise, the
selling securityholders may enter into derivative or hedging transactions with
third parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions, which may in turn engage in short
sales of the common stock issuable upon exercise of the Warrant in the course of
hedging the positions they assume. The selling securityholders may also sell
short the common stock issuable upon exercise of the Warrant and deliver common
stock to close out short positions, or loan or pledge the Series B Preferred
Stock or the common stock issuable upon exercise of the Warrant to
broker-dealers that in turn may sell these securities.
In
offering the securities covered by this prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
selling securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act will
be subject to the prospectus delivery requirements of the Securities Act and may
be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Exchange Act.
The
selling securityholders and any underwriters and distribution participants will
be subject to applicable provisions of the Exchange Act and the associated rules
and regulations under the Exchange Act, including Regulation M, which provisions
may limit the timing of purchases and sales of shares by the selling
securityholders. Furthermore, under Regulation M, persons engaged in a
distribution of securities are prohibited from simultaneously engaging in market
making and certain other activities with respect to such securities for a
specified period of time prior to the commencement of such distributions,
subject to special exceptions or exemptions. In addition, the anti-manipulation
rules under the Exchange Act may apply to sales of the securities in the market.
All of these limitations may affect the marketability of the securities and the
ability of any person to engage in market-making activities with respect to the
securities.
Underwriters
and others who are deemed to be underwriters under the Securities Act may engage
in transactions that stabilize, maintain or otherwise affect the price of the
common stock, including the entry of stabilizing bids or syndicate covering
transactions or the imposition of penalty bids.
We will
file a supplement to this prospectus, if required, pursuant to Rule 424(b) under
the Securities Act, upon being notified by the selling securityholders that a
material arrangement has been entered into with a broker, dealer, agent or
underwriter for the sale of securities through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such prospectus supplement will disclose:
|
|
·
|
the
name of the selling securityholders and any participating broker, dealer,
agent or underwriter;
|
|
|
·
|
the
number and type of securities
involved;
|
|
|
·
|
the
price at which such securities were
sold;
|
|
|
·
|
any
securities exchanges on which such securities may be
listed;
|
|
|
·
|
the
commissions paid or discounts or concessions allowed to any such broker,
dealer, agent or underwriter where applicable;
and
|
|
|
·
|
other
facts material to the transaction.
|
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the securities may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Neither
the Series B Preferred Stock nor the Warrant is listed on an exchange. Unless
requested by the initial selling securityholder, we do not intend to list the
Series B Preferred Stock on any exchange. We do not intend to list the Warrant
on any exchange. No assurance can be given as to the liquidity of the trading
market, if any, for the Series B Preferred Stock.
SELLING SECURITY HOLDERS
On
December 19, 2008, we issued the securities covered by this prospectus to the
United States Department of the Treasury, which is the initial selling
securityholder under this prospectus, in a transaction exempt from the
registration requirements of the Securities Act. The initial selling
securityholder, or its successors, including transferees, may from time to time
offer and sell, pursuant to this prospectus or a supplement to this prospectus,
any or all of the securities they own. The securities to be offered under this
prospectus for the account of the selling securityholders are:
|
|
·
|
70,000
shares of Series B Preferred Stock, representing beneficial ownership of
100% of the shares of Series B Preferred Stock outstanding on the date of
this prospectus;
|
|
|
·
|
a
warrant to purchase 751,611 shares of our common stock, representing
beneficial ownership of approximately 3.48% of our common stock as of
January 20, 2009; and
|
|
|
·
|
751,611
shares of our common stock issuable upon exercise of the warrant, which
shares, if issued, would represent ownership of approximately 3.48% of our
common stock as of January 20,
2009.
|
For
purposes of this prospectus, we have assumed that, after completion of the
offering covered by this prospectus, none of the securities covered by this
prospectus will be held by the selling securityholders.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. To our knowledge, the
initial selling securityholder has sole voting and investment power with respect
to the securities, subject to restrictions on exercise of voting rights on
Series B Preferred and common stock issuable upon exercise of the Warrant as
described in “Description of Series B Preferred Stock” and “Description of the
Warrant” above, respectively.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any or all of
the securities offered by this prospectus. Because the selling securityholders
may offer all or some of the securities pursuant to this offering, and because
currently no sale of any of the securities is subject to any agreements,
arrangements or understandings, we cannot estimate the number of the securities
that will be held by the selling securityholders after completion of the
offering.
Other
than with respect to the acquisition of the securities, the initial selling
securityholder has not had a material relationship with us.
Information
about the selling securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
Certain
legal matters with respect to the securities offered hereby, and certain legal
matters relating to Delaware law, including the validity of the securities
offered hereby, will be passed upon for us by Sonnenschein Nath & Rosenthal
LLP, Two World Financial Center, New York, New York 10281. If legal
matters in connection with offerings made pursuant to this prospectus are passed
upon by counsel for the underwriters, dealers or agents, if any, such counsel
will be named in the prospectus supplement relating to such
offering.
The
consolidated financial statements of financial condition of Flushing Financial
Corporation and subsidiaries as of December 31, 2007 and 2006, and the related
consolidated statements of income, changes in stockholders’ equity, and cash
flows for each of the two years in the period ended December 31, 2007 and
internal control over financial reporting as of December 31, 2007 have been
audited by Grant Thornton LLP, an independent registered public accounting firm,
as stated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The
consolidated financial statements of income, changes in stockholders’ equity,
and cash flows of Flushing Financial Corporation and subsidiaries for the year
ended December 31, 2005 have been so incorporated in reliance on the report of
PricewaterhouseCoopers, LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
FLUSHING
FINANCIAL CORPORATION
___________________
PROSPECTUS
___________________
____________,
2009
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following statement sets forth our expenses in connection with the offering
described in the Registration Statement (all of which we will
bear). All amounts shown are estimated, except the SEC registration
fee.
|
SEC
registration fee
|
$ | 3,163.65 | ||
|
Accountants’
fees and expenses
|
25,000 | |||
|
Legal fees and expenses
|
32,500 | |||
|
TOTAL
|
$ | 60,663.65 |
Item
15. Indemnification of Directors and Officers
Section
145 of 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, 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 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, 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
his or her conduct was unlawful. Similar indemnification 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 such person acted in good faith and in a manner he or she
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 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.
Section
145 of the DGCL further authorizes a 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
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, 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 otherwise have the power to indemnify such person against
such liability under Section 145 of the DGCL.
Article
TENTH of the Company’s Certificate of Incorporation limits the personal
liability of directors in specified circumstances and sets forth circumstances
under which directors, officers, employees and agents of the Company may be
indemnified against liability which they incur in their capacities as
such. Article TENTH provides as follows:
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.
The
Company has entered into Indemnity Agreements with each of its directors and
executive officers, which provide for mandatory indemnification for each such
person to the full extent permitted by law against judgments, fines, amounts
paid in settlement in connection with any claim arising out of such person’s
service to the Company 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
Company maintains insurance coverage under which the Company’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 officers and directors.
For the
undertaking with respect to indemnification, see Item 17 in this Registration
Statement.
Item
16. Exhibits
|
Exhibit
Number
|
Description
|
|
3.1
|
Certificate
of Designations, establishing the terms of the Series B Preferred Stock,
dated December 16, 2008*
|
|
4.1
|
Form
of Certificate for the Series B Preferred Stock*
|
|
4.2
|
Warrant
for Purchase of Shares of Common Stock, issued on December 19,
2008*
|
|
4.3
|
Letter
Agreement including the Securities Purchase Agreement – Standard Terms
attached thereto, dated December 19, 2008, between the Company and United
States Department of the Treasury, with respect to the issuance and sale
of the Series B Preferred Stock and the Warrant*
|
|
Opinion
of Sonnenschein Nath & Rosenthal LLP**
|
|
|
12.1
|
Computation
of Ratio of Earnings to Combined Fixed Charges (see page 6 of
this Registration Statement)
|
|
23.1
|
Consent
of Sonnenschein Nath & Rosenthal LLP (included in Exhibit
5.1)
|
|
Consent
of Grant Thornton LLP**
|
|
|
Consent
of PricewaterhouseCoopers LLP**
|
|
|
24
|
Power
of Attorney (see page II-7 of this Registration
Statement)
|
|
|
*
|
Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed on
December 23, 2008 and incorporated herein by
reference
|
|
|
**
|
Filed
herewith
|
Item
17. 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 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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (§230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 (i), (ii) and (iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) (§230.424(b) of this chapter)
that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
in the post-effective amendment 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 purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of 314 securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date;
or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or 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 the securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been informed that in the opinion of the Securities and Exchange Commission
this type of indemnification is against public policy as expressed in the Act
and is, therefore unenforceable. In the event that a claim for
indemnification against liabilities arising under the Securities Act of 1933
(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 any 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 Act and will be governed by the final adjudication of the
submitted issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Success and the State of New York on
the 27th day of
January, 2009.
|
Flushing
Financial Corporation
|
||
|
By:
|
/s/ John R.
Buran
|
|
|
John
R. Buran
|
||
|
President
and Chief Executive
Officer
|
||
SIGNATURES
AND POWER OF ATTORNEY
We, the
undersigned officers and directors of Flushing Financial Corporation, hereby
severally constitute and appoint John R. Buran as our true and lawful attorney
with full power to him to sign for us and in our names in the capacities
indicated below the Registration Statement on Form S-3 filed herewith and any
and all pre-effective and post-effective amendments to said Registration
Statement, and any subsequent Registration Statement for the same offering or
for any additional offerings (as contemplated by the Registration Statement
filed herewith) which may be filed under Rule 415 or Rule 462, and generally to
do all that is necessary in our name and on our behalf in our capacities as
officers and directors to enable Flushing Financial Corporation to comply with
the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to said Registration
Statement and any and all amendments thereto or to any subsequent Registration
Statement for the same offering or for any additional offerings (as contemplated
by the Registration Statement of which this prospectus is a part filed herewith)
which may be filed under Rule 415 or Rule 462.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on
the 27th day of
January, 2009.
|
Signature
|
Title
|
|
|
/s/ John R. Buran
|
President
and Chief Executive Officer
|
|
|
John
R. Buran
|
||
|
/s/ Louis C. Grassi
|
Director
|
|
|
Louis
C. Grassi
|
||
|
/s/ Michael J.
Hegarty
|
Director
|
|
|
Michael
J. Hegarty
|
||
|
/s/ Vincent F.
Nicolosi
|
Director
|
|
|
Vincent
F. Nicolosi
|
||
|
/s/ John E. Roe Sr.
|
Director
|
|
|
John
E. Roe Sr.
|
|
/s/ James D. Bennett
|
Director
|
|
|
James
D. Bennett
|
||
|
/s/ Steven J. D’Iorio
|
Director
|
|
|
Steven
J. D’Iorio
|
||
|
/s/ Sam Han
|
Director
|
|
|
Sam
Han
|
||
|
/s/ John J. McCabe
|
Director
|
|
|
John
J. McCabe
|
||
|
/s/ Donna M. O’Brien
|
Director
|
|
|
Donna
M. O’Brien
|
||
|
/s/ Michael J. Russo
|
Director
|
|
|
Michael
J. Russo
|
||
|
/s/ David W. Fry
|
Chief
Financial Officer
|
|
|
David
W. Fry
|
(Principal
Financial and Accounting Officer) and Executive Vice
President
|
II - 8