EXPLANATORY NOTE
We are registering 1,238,512 shares of our Common Stock under our 2008 Incentive Plan, with the filing of this Registration Statement on Form S-8. Our stockholders approved the 2008 Incentive Plan at our Annual Meeting of Stockholders held on May 27, 2008.
In addition, pursuant to an “evergreen” provision in the Employment Agreements, we must grant stock options to each of John Marino, Warren S. Orlando, and Rudy E. Schupp equal to 3.33% of the shares of Common Stock outstanding from time to time. We initially registered an aggregate of 1,200,000 shares of our Common Stock reserved for issuance under the Employment Agreements on a registration
statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on May 9, 2008. We are registering an additional 1,277,023 shares that have been reserved for issuance pursuant to the “evergreen” provision of the Employment Agreements with the filing of this Registration Statement on Form S-8.
PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
We will send or give to our employees the documents containing the information specified in Part I as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (“Securities Act”). In accordance with the instructions in Part I of Form S-8, such documents will not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by us with the Commission are incorporated herein by reference:
(a) our Annual Report on Form 10-K for the year ended December 31, 2008, filed with the Commission on March 13, 2009;
(b) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed with the Commission on April 30, 2009;
(c) our Quarterly Report on Form 10-Q for the quarter ended June 30, 2009, filed with the Commission on July 31, 2009;
(d) our Quarterly Report on Form 10-Q for the quarter ended September 30, 2009, filed with the Commission on October 28, 2009;
(d) our Current Reports on Form 8-K, filed with the Commission on January 30, 2009, May 28, 2009, and August 26, 2009;
(e) the portions of our Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 9, 2009, that are deemed “filed” with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
2
(f) the portions of our Preliminary Proxy Statement on Schedule 14A, filed with the Commission on October 21, 2009, that are deemed “filed” with the Commission under the Exchange Act; and
(g) the description of our Common Stock, $0.01 par value per share (“Common Stock”), included in our Registration Statement on Form 8-A filed with the Commission on September 17, 2009.
All documents subsequently filed by us pursuant to Sections 13(a) or 15(d) of the Exchange Act (other than Regulation FD disclosure furnished under either Item 2.02 or Item 7.01 of Form 8-K, including any exhibits relating to information furnished under either Item 2.02 or Item 7.01), prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporations Act (“FBCA”) authorizes a company to indemnify its directors and officers in certain instances against certain liabilities that they may incur by virtue of their relationship with the company. A company may indemnify any director, officer, employee or agent against judgments, fines, penalties, amounts paid in settlement, and expenses incurred in any pending,
threatened or completed civil, criminal, administrative, or investigative proceeding (except an action by the company) against him in his capacity as a director, officer, employee, or agent of the company, or another company if serving in such capacity at the company’s request if he (i) acted in good faith; (ii) acted in a manner which he reasonably believed to be in or not opposed to the best interests of the company; and (iii) with respect to a criminal action, had no reasonable
cause to believe his conduct was unlawful. Furthermore, a company may indemnify any director, officer, agent or employee against expenses incurred in defense or settlement of any proceeding brought by the company against him in his capacity as a director, officer, employee or agent of the company, or another company if serving in such capacity at the company’s request, if he: (i) acted in good faith; (ii) acted in a manner which he reasonably believed to be in or not opposed to
the best interests of the company; and (iii) is not adjudged to be liable to the company (unless the court finds that he is nevertheless reasonably entitled to indemnity for expenses which the court deems proper). A company must repay the expenses of any director, officer, employee or agent who is successful on the merits of an action against him in his capacity as such.
A Florida company is authorized to make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, except for acts or omissions which constitute (i) a violation of the criminal law (unless the individual had reasonable cause to believe it was lawful); (ii) a transaction in which the individual derived an improper personal benefit; (iii) in the case
of a director, a circumstance under which certain liability provisions of the FBCA are applicable (related to payment of dividends or other distributions or repurchases of shares in violation of such Act); or (iv) willful misconduct or a conscious disregard for the best interest of the company in a proceeding by the company, or a company shareholder. A Florida company also is authorized to purchase and maintain liability insurance for its directors, officers, employees and agents.
3
Under our Bylaws, we may indemnify our directors, officers, and so on to the fullest extent permitted by applicable law. We have entered into indemnification agreements with each member of the board of directors, which provide that we and our subsidiary, 1
st
United Bank, will indemnify each such person to the fullest extent permitted by applicable law.
Federal banking law, which is applicable to us as a financial holding company and to 1st United Bank as an insured depository institution, limits our ability and 1
st
United Bank’s ability to indemnify their directors and officers. Neither we nor 1st United Bank may make, or agree to make, indemnification payments to an institution-affiliated party such as an officer or director in connection
with any administrative or civil action instituted by a federal banking agency if, as a result of the banking agency action, the indemnitee is assessed a civil money penalty, is removed from office or prohibited from participating in the conduct of our affairs or those of 1st United Bank, or is subject to a cease and desist order. Prior to the resolution of any action instituted by the applicable banking agency, we or 1
st
United Bank, as applicable, may indemnify officers and
directors only if the respective board of directors, as the case may be, (i) determines that the indemnified person acted in good faith, (ii) determines after investigation that making indemnification payments would not affect our safety and soundness or the safety and soundness of 1
st
United Bank, as the case may be, and (iii) if the indemnified party agrees in writing to reimburse us or 1st United Bank, as the case may be, for any indemnity payments which turn out to be
impermissible.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers or controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
|
|
4.1
|
2008 Incentive Plan - incorporated herein by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K (filed 2/6/08) (No. 000-1415277)
|
|
|
5.1
|
Opinion of Gunster, Yoakley & Stewart, P.A.
|
|
|
10.1
|
Amended and Restated Employment Agreement with John Marino, dated as of December 18, 2008 – incorporated herein by reference to Exhibit 10.2 of the Registrant’s Form 10-K (filed 3/13/09) (No. 000-1415277)
|
|
|
10.2
|
Amended and Restated Employment Agreement with Warren S. Orlando, dated as of December 18, 2008 – incorporated herein by reference to Exhibit 10.3 of the Registrant’s Form 10-K (filed 3/13/09) (No. 000-1415277)
|
|
|
10.3
|
Amended and Restated Employment Agreement with Rudy E. Schupp, dated as of December 18, 2008 – incorporated herein by reference to Exhibit 10.4 of the Registrant’s Form 10-K (filed 3/13/09) (No. 000-1415277)
|
|
|
23.1
|
Consent of Crowe Horwath LLP
|
|
|
23.2
|
Consent of Gunster, Yoakley & Stewart, P.A. (contained in Exhibit 5.1)
|
Item 9. Undertakings.
|
|
|
|
(a)
|
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;
|
4
|
|
|
|
|
|
(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) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
|
|
|
|
|
|
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
|
|
|
|
|
|
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
|
|
|
|
|
(2)
|
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
|
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
|
|
|
(b)
|
The undersigned Registrant hereby undertakes 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 such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
|
(c)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
|
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Boca Raton, State of Florida, on the 28th day of October, 2009.
|
|
|
|
1
ST
UNITED BANCORP, INC.
|
|
|
|
|
By:
|
/s/
Rudy E. Schupp
|
|
|
|
|
|
Rudy E. Schupp
|
|
|
Chief Executive Officer
|
|
|
(Principal Executive Officer)
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
/s/ Rudy E. Schupp
|
|
|
|
|
|
|
|
|
|
Rudy E. Schupp
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
John Marino
|
|
Chief Financial Officer (Principal
|
|
|
|
|
Financial Officer and Principal
|
|
|
John Marino
|
|
Accounting Officer) and Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Warren S. Orlando
|
|
|
|
|
|
|
|
|
|
Warren S. Orlando
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Paula Berliner
|
|
|
|
|
|
|
|
|
|
Paula Berliner
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Jeffery L. Carrier
|
|
|
|
|
|
|
|
|
|
Jeffery L. Carrier
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Ronald A. David
|
|
|
|
|
|
|
|
|
|
Ronald A. David
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
James Evans
|
|
|
|
|
|
|
|
|
|
James Evans
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Arthur S. Loring
|
|
|
|
|
|
|
|
|
|
Arthur S. Loring
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Thomas E. Lynch
|
|
|
|
|
|
|
|
|
|
Thomas E. Lynch
|
|
Director
|
|
October 28, 2009
|
6
|
|
|
|
|
/s/ Carlos Morrison
|
|
|
|
|
|
|
|
|
|
Carlos Morrison
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
H. William Spute
|
|
|
|
|
|
|
|
|
|
H. William Spute
|
|
Director
|
|
October 28, 2009
|
|
|
|
|
|
/s/
Joseph W. Veccia
|
|
|
|
|
|
|
|
|
|
Joseph W. Veccia
|
|
Director
|
|
October 28, 2009
|
7
EXHIBIT INDEX
|
|
5.1
|
Opinion of Gunster, Yoakley & Stewart, P.A.
|
|
|
23.1
|
Consent of Crowe Horwath LLP
|
|
|
23.2
|
Consent of Gunster, Yoakley & Stewart, P.A. (contained in Exhibit 5.1)
|
(MM) (NASDAQ:FUBC)
Historical Stock Chart
From May 2024 to Jun 2024
(MM) (NASDAQ:FUBC)
Historical Stock Chart
From Jun 2023 to Jun 2024